On section 1——
An Bille um An Triú Leasú ar an mBunreacht, 1971: An Coiste. Third Amendment of the Constitution Bill, 1971: Committee Stage.
ALT 1.
SECTION 1.
Tairgeadh an cheist: "Go bhfanfaidh alt 1 mar chuid den Bhille."
Question proposed: "That section 1 stand part of the Bill."
Before the Senator rises to speak I should like to remind Senators that, as agreed last week, the debate on the Bill will deal with the nature of the constitutional amendment which will be necessary in order to enable the State to become a member of the Communities. Accordingly, any matter which is clearly appropriate to the White Paper rather than to the details of the Bill itself should be reserved for the debate on the motion on that White Paper.
Perhaps the House will permit me to begin with a short personal explanation. I have some points to make on this Bill which would have been more convenient for the Government had I made them last week. I did not anticipate that the debate on the Second Stage could possibly end as early as it did. I was surprised when I came to the House at lunch time last Thursday to find that it had concluded. I regret I was not there earlier because I feel I would have been able to make these points to better advantage then.
I read the Parliamentary Secretary's speech last week in which he gave the reasons why the Government, having carefully considered the possibility of effecting the necessary constitutional amendment for adherence to the European Communities, decided against piecemeal amendment, against specifying the articles which might be affected by the obligations of membership. The reasons given by the Parliamentary Secretary seem to me to carry weight. I do not wish to take up the time of the House by going back over that ground again and I am not even sure that the best way of doing this would have been by piecemeal amendment, but I feel I ought to draw the attention of the House and of the Government to what seems to me to be possibly substantial difficulties which the technique of amendment adopted may cause to arise in the future.
The first point to which I should like to direct the attention of the House is this. Our Legislature, the Oireachtas, is specifically prohibited from certain definite kinds of legislation. For example, in Article 41 it is specifically prohibited from enacting divorce legislation. In Article 15, section 5, it is specifically prohibited from enacting legislation of a retroactive penal kind. These are specific prohibitions. I do not wish to cause alarm and I feel no political alarm about the way in which this has been drafted. But I must draw attention to this technical difficulty. If the Oireachtas is specifically debarred, as it is by the two articles I have mentioned, in regard to divorce legislation and the enactment of retroactive penal sanctions, it could be argued that if it purports to legislate in these areas all it is doing is beating the air. Even though what may come out at the far side may look like an Act and has all the outward indicia of an Act, it is no Act because it represents activity by the Oireachtas in an area from which it is specifically debarred. This point is clear enough and difficult enough in regard to the two instances I have given where the Constitution goes out of its way to single out special kinds of legislation which our Parliament is prohibited from enacting.
In addition to that, there is a general prohibition also in Article 15, section 4, which prohibits the Oireachtas from enacting any law which is in any respect repugnant to the Constitution or any provision thereof. It is arguable—it may not be a very strong argument—that if the Oireachtas ignores that provision in Article 15, section 4, even after entry to the European Communities and even though it may be required by the obligations of membership to ignore it, what comes out at the far end of the legislative process is not a law within the intendment of the Constitution. This is not an absolutely persuasive argument but it raises this dilemma: what comes at the far end of that legislative process either is a law or it is not. If it is a law, then it is rescued by the provisions of the Schedule to this Bill. If it is not a law the provisions in this Schedule do not apply to it. If a court is still left in a situation where it can say what the Oireachtas has done represents a trespass across the boundaries of what has been permitted to it by the people of Ireland, it is not entitled to bear the label law. If that is so, it is not rescued by the provisions of this amendment, and the amendment has failed in its purpose. But if the court takes the view that this amendment to the Constitution, being part of the Constitution itself, will operate to rescue it then it is giving this part of the Constitution as amended by the people, as I hope they will amend it, a kind of primacy. I am not sure if the Government have grasped the extent of the primacy which they are according to this section because it is making it virtually impossible to cite any part of the Constitution—and this is where the difficulty of blanket amendment comes in—in order to challenge legislation which is overtly necessitated by membership of the European Economic Community.
My party are committed to supporting the necessary constitutional amendment in order to join the EEC. I am in agreement with that decision. I am in no way trying to raise a scare. What I am doing at the moment is trying to draw attention, even at this late stage, to what seems to me to be a serious practical difficulty. Let us suppose, to take the most extreme instance, that membership of the European Economic Community necessitated at some stage legislative action here which would have a directly negativing effect on some provision of the Constitution, the Constitution itself could not be quoted in order to rescue itself. Suppose, to take a fairly fantastic example, membership of the European Economic Community necessitated the giving up by each member state of the conduct of its own public accounts and the transference of the public accounts of all member states to Luxembourg, the Oireachtas could then enact a Bill purporting to abolish the office of Comptroller and Auditor General. The office of Comptroller and Auditor General is embedded in the Constitution. He is a constitutional officer with constitutional functions, and in the ordinary way you could not get rid of him or his office except by means of a referendum, in other words by going to the people and asking them to remove this Article.
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.
I do not wish to alarm anyone about this; I would vote for this amendment and recommend it to the people even as it stands because I believe the benefits of membership of the EEC outweigh not only the economic difficulties with which membership will confront us but perhaps even the legal and technical risks of the kind I have outlined. I urge in an unpartisan way on the Government that they might look at this question and consider whether this way is the best. There is literally nothing in the Constitution which could not be amended by the Oireachtas without going back to the people, provided it could be demonstrated that it was necessitated by the obligation of membership.
I know what I am saying sounds like a general alarm and that it may be open to misrepresentation. I want to make it clear—and I have said this several times already—that I do not wish to be so represented. I do not think membership presents serious danger, but I am anxious that the parties which believe in our success on entering Europe should reduce the target we are offering of misrepresentation by others. I am anxious that Fine Gael and Fianna Fáil should give the least possible room for misrepresentation to those who are against our joining the EEC.
There is an infirmity in this. Our view of an infirmity in the manner in which this is drafted—I admit it is an extreme case—would be that 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. It does not protect that Article from the effects of this amendment. In other words, we are back to the situation under the old Constitution when Article 50 of the 1922 Constitution was amended by virtue of itself so as to extend the period during which laws could be changed by the Oireachtas from eight to 16 years, and that process could have gone on indefinitely. When the new Constitution was enacted no one tried to repeat that process, but I think that possibility is open here.
I recognise that I am coming in late with this point and I regret I was not able to make it a week ago. While I can see the difficulty of isolating the provisions of the Constitution which might be affected by membership and of drafting an amendment in such a way as to amend these Articles, and these ones only, 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. I am not trying to raise any such foolish scare but I think we would be reducing the area of target for the opponents of this measure—and some of the opponents are genuine, sincere and patriotic people; others are less so—if we were to eliminate and make it impossible for them to misrepresent what is going on here. My fear is that, as this Article stands, even though I understand the difficulties which the Parliamentary Secretary explained, it is offering a target through the technical infirmity which I have tried to explain.
If the Government were willing to look at the parts of the Schedule at all, I would direct their attention to what is not so much a drafting slip as a drafting inelegance: line 8 of Part II of the Schedule where the Bill speaks of "laws enacted, acts done or measures adopted by the State". The use of the verbs in these three places suggests that the phrase "by the State" applies to all three pairs of words. In fact, the State is not a Legislature. Article 15 expressly distinguishes between the State and its Legislature when it says:
The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.
It is not the State, technically speaking, that makes laws; it is the Oireachtas that makes laws for the State. It is true that the usage of the Constitution is not uniform in this respect and there are other Articles—I referred to Article 43 a moment ago—in which it speaks about the State making laws. There is a constitutional justification for this phrase, but I think a more exact expression would be "laws enacted by the Oireachtas". So far as the other two phrases go "acts done or measures adopted by the State" here again some better degree of exactness would have been desirable.
"The State" is a very loose expression which means different things in different contexts. It means different things in different settings even within the Constitution. I would have preferred—although I do not think any great issue hangs on this and I do not want to inflate it to an importance which it has not got—if the latter two phrases had read "acts done or measures adopted under the authority of an Act of the Oireachtas" or "under the authority of the Oireachtas". I advance that not as a point of substance but as a point of detail. If the Government, even at this late stage, consider the form of their amendment, or think there is any substance in what I have been saying, perhaps these two words might be looked at again.
Before calling on Senator Robinson the Chair is anxious that there should not be unnecessary duplication of debate. Senator Kelly has debated the Schedule, which is in a sense part of section 1 of this Bill. I think Senators therefore, should continue to debate the Schedule on this section and the Schedule can, in due course, be passed without any further discussion.
If it is passed.
I had been prepared to discuss the Schedule separately, but if it is the wish of the House I can discuss them together. It means a rather longer interjection at this stage. First of all, I would like to express regret for not being present on the last day. Unfortunately, I had a clash with the Legal Committee in Brussels and I was unable to avoid it. I have, however, read the debate and I am aware of what was said at that time. Like Senator Kelly, although I am in favour of a Bill of this sort being passed in order to enable us to join the EEC, I do not share the confidence of many of the speakers, and particularly the Parliamentary Secretary, that it will solve the problems that it purports to solve.
Looking first of all at section 1 of the Act, which provides for the amendment of Article 29, it is clear that the effect of the Schedule will be to amend more than just this Article. Article 46, section 1 reads:
Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.
One of the problems that I would have in relation to this is that we are not just amending Article 29 by addition: we are in effect amending a great many other Articles indirectly and I am not so sure that Article 46 allows this.
Senator Kelly referred to this type of general amendment, which occurred in relation to the 1922 Constitution. It is relevant to look at the only judicial comment I could find on this type of amendment, which is extremely pertinent here. I am referring to the case of the Attorney General against McBride, 1928, Irish Reports, where Mr. Justice Hanna was considering the provisions of the Public Safety Act, 1927, and a particular provision of the Act which reads:
Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment for so long only as this Act continues in force of such provision of the Constitution.
In other words, the Public Safety Act, 1927, was to amend the Constitution in so far as it was in conflict with any provision of it. In that case the Act was clearly extended to amend any provision of the Constitution. Here we have a rather general clause purporting to amend only Article 29 but in fact amending many other provisions of the Constitution, as we shall see and as has been admitted. At page 456 of this report, Mr. Justice Hanna states:
This clause purports to be a discharge of the obligations thrown upon the Oireachtas by Article 50. The question arises: Is it a sufficient compliance in law with Article 50 to insert in an Act of Parliament in vague and general terms a clause such as this—a drag-net— without specifying either any Article, or part of an Article, of the Constitution that is to be amended, or whether in fact any amendment is made? The Constitution is a sacred charter not to be lightly, vaguely or equivocally tampered with. But this section 3 leaves the subjects of the State who have rights under the Constitution and rights to exercise against amendments of the Constitution in the dark as to what is really altered in the Constitution, instead of enlightening them as to any change in their status. An omnibus amendment of this kind is contrary to the spirit of Article 50, if not to the letter. The rights of the people should not be obscured by the facile pen of the parliamentary draughts-men. The matter has not been fully argued before me but having regard to the wording of Article 50 the amendment can be made, and I quote, "by way of ordinary legislation". I feel compelled, but with great hesitation, to come to the conclusion that this section 3 comes within that term; but it is a precedent that should not be followed.
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. Therefore, on section 1, I am not very happy about the wording by which we are purporting to amend Article 29.
Since Senator Kelly referred to the Schedule when he was speaking, and since the Cathaoirleach has indicated that this is appropriate in considering section 1, I should also like to make some remarks on the wording of the Schedule. I do not think one has to think of fantastic examples to show that this will not be adequate for entry into the Communities, even as they exist at the moment and as they are developing. This is because the Schedule, which is now familiar to all of us, provides that the State may become a member of the three Communities. Then it continues:
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities, or prevents laws enacted, acts done or measures adopted by the Communities and institutions thereof from having the force of law in the State.
The problem with this is that the obligations now being assumed by member states of the Communities go beyond the obligations in the original Treaties. Some of these original obligations have not yet been implemented: many of them have. Under the existing three Treaties which are referred to in the Schedule various objectives have been realised, such as the customs union on 1st January, 1970, the common agricultural policy; and a great deal in relation to the free movement of goods and services and so on. But there are other objectives which have not been achieved, such as transport policy, the free movement of capital, the establishment of the liberal professions.
As well as that, the Communities have evolved to what is called the borderline of the Treaties, that is, to the areas which are not expressly catered for in the Treaties, and here we are talking about the obligations of the Treaties. I want to consider this in some detail. I regret this but I think it is necessary because as far as I see this was not done in the debates in either House. It is necessary to look at the way in which the extension of the Treaty commitments has been carried out, and that it has gone beyond the strict legal obligations of the Committee. We are tying ourselves to the strict legal obligations of the Communities, and are leaving wide open a challenge for anything going beyond that.
I should like to refer to the area of economic and monetary union. There is doubt in the Community itself as to whether this is fully justified under Article 235 or whether it has gone beyond it, because the Governments agreed to go beyond Article 235, which sets out:
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.
Article 235 has been used to extend many of the obligations of the Treaty. It is not so much an amendment of the Treaty, which Senator Keery referred to, where there is control, because the amendment comes back to the national parliaments and to ratification by the national constitutional apparatus. However, Article 235 allows the governments by agreement to extend the operation of the Treaties, if the Treaties themselves have not provided for "the requisite powers of action". This is what has happened: the obligations have been extended and it is not accepted—and this is one of the points that has to be stressed—it is not accepted by all the Six Community countries that the economic and monetary union does rest squarely on Article 235. The French would prefer to say that it rests on the unanimous agreement of the countries involved and that therefore they can do it.
This is outside the terms and obligations of the Treaty and yet it is very much part of the commitment of the Community. Let us trace the development of the economic and monetary union. It arose from an agreement between the Governments at the summit meeting in The Hague in 1969. They decided to try to achieve this economic and monetary union. This inter-governmental summit consensus was affirmed by the appropriate institution of the Communities, by a decision of the Council of Ministers, on 6th March, 1970. They set up a working group under Werner from Luxembourg. The Werner group issued their final report in October, 1970, with implications for economic and monetary union. They were very wide implications, roughly in three stages. Firstly, there was a very strong coordination of economic policies; then followed the growth of new Community institutions to cope with this development; and finally, the important decisions in economic and monetary policy would be taken at the Community level and not at the national level as at the moment. They would provide almost immediately for very strong harmonisation of budgetary policy. These are matters that we consider to be very much in the sphere of the Dáil—not even of both Houses of Parliament—at the moment.
On 9th February, 1971, there was an agreement in principle by the Council of Ministers and by the representatives of the Governments to adopt the Werner plan. On 22nd March, 1971, there was a firm resolution of the Council to adopt this, so that economic and monetary union has been decided upon. The decision has been taken but it has not been fully implemented. The French and Germans are very anxious that more work be done on this. What I stress and emphasise is that this goes beyond the strict obligations in the Treaties as they are written and that we are aligning ourselves to strict obligations by this very tightly worded constitutional amendment. The commitment goes beyond that, because the Community have evolved beyond many of the strict Treaty obligations. Not all of them have been achieved, but it is a dynamic process and it will raise great difficulties.
Article 28, Section 4, of our Constitution states:
3º The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration.
Article 17, Section 1, states:
1º As soon as possible after the presentation to Dáil Éireann under Article 28 of this Constitution of the Estimates of receipts and the Estimates of expenditure of the State for any financial year, Dáil Éireann shall consider such Estimates.
2º Save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Financial Resolutions of each year shall be enacted within that year.
Article 17. Section 2, provides:
Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.
If there is a harmonisation of budgets there will be a role for the Committee of Central Bankers, which has been set up, and other possible community bodies which may interfere with our freedom to work out our own budget. It will take away from the Dáil some of the powers which it has at the moment in relation to estimates and expenditure. This, then, goes beyond the strictest terms of the Treaties as they are set out in black and white. It evolves from either an interpretation of Article 235 or perhaps an agreement of the six countries, depending on which variation you take.
This is only one example of how the Communities are evolving beyond the strict terms of the present Treaties. Another example is in the field of external relations. Again, in the Hague Communiqué in 1969 it was decided that Europe has external commitments as a block. It has commitments towards the United States, Eastern Europe and the Third World. Those commitments have to be worked out. A Committee of Ministers for Foreign Affairs were charged with evolving a policy. In July, 1970, we had the Davignon Report, Davignon being the Belgian Minister for Foreign Affairs, and arising out of that it was decided that the Ministers for Foreign Affairs would meet every six months; that the work which they would deal with would be prepared by a political committee, which meets every month. The applicant countries have been given observer status on this Davignon Committee. Deputy Hillery has been attending the meetings. This committee is evolving an external policy for the Community so that Europe will speak with one voice, so that Europe will adopt a unified approach to relations with America, particularly in trade discussions next year, and so that Europe will look— this is very important—at the East-West Security Conference which will probably come up next year. An attempt will be made to have Europe speak with one voice on external relations.
Looking again at Article 29 which we are amending by the addition of this section, it provides for a certain discretion to the Government in external relations. Article 29. Section 4, provides:
1º The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.
Subsection (2) goes on to give even more general scope:
2º For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
This is a general provision. It allows us to join the United Nations, the Convention on Human Rights and Fundamental Freedoms, et cetera, and to adopt the various mechanisms which other countries are adopting. If we insert another subsection in there— that is where it will go if we pass this Bill—then we are narrowing the scope of the activity of the Government in relation to the Communities, because we can only adopt mechanisms “necessitated by the obligations of the Treaties”, and this whole area of foreign relations is not necessitated by the obligations of the Treaties. It goes beyond it. It has been agreed by the governments but it is not strictly necessitated by the obligations of membership. We are in an area that has gone beyond this strict obligation, pointing to the particular Article in question. This is going to raise great difficulties because the courts will have to view the strict legal obligations and also the wording of this amendment which will result in a good deal of conflict.
One can mention other areas where this will also arise, for example, areas where decisions are being taken at the Community level which were not considered at all, even a few years ago. I am thinking in particular—I welcome this because it is necessary that the decisions be taken at Community level—of decisions on environmental policy, on how to cope with the pollution of the environment, how to cope with preserving natural resources in the Community. There is nothing in the Treaties about this.
If in implementing these decisions, the Oireachtas has to pass laws which are contrary to the private ownership provisions of the Constitution, this will not be necessitated by the obligations of membership because there is nothing in the Treaties about this. One cannot extend Treaty obligations by agreement. They must be extended by a firm amendment to the Treaty to that effect. Yet environmental policy will also be implemented on this sort of fringe border area at the very periphery of the Treaty obligations. There is a good deal of doubt about the strict Treaty obligation but it does not matter for Community purposes if you have the consent of the Ministers involved.
Another point I want to make, since we are also discussing the Schedule, is in relation to the fact that the three Treaties, regulations and decisions of the Communities or institutions thereof will have the force of law in the State when this is passed. I have tabled a motion with Senator Horgan about this and I understand it will be discussed at a later stage. This I welcome because I think it is more appropriate then. There is a certain problem in this country which does not exist in England, the question of the referendum.
Therefore the point that I am making is one which I should like to have recorded here, although it will come up again, and that is the necessity to study immediately the position and set up a select committee to look into the various regulations and directives and to prepare the way for scouting of future regulations and directives which will become operative here. I should like to refer to the practice in the Westminster Parliament. I admit that they are in a position to go ahead with this because they have already taken the decision effectively to enter and are able to set in motion this machinery. I will quote from today's London Times an article on page 5:
The Government is expected to announce within the next ten days the membership of an ad hoc committee of both Houses of Parliament which will consider the most suitable method of ensuring adequate parliamentary scrutiny of draft Common Market regulations and directives.
Such a committee was promised by Mr. Rippon, Chancellor of the Duchy of Lancaster, on February 15 in view of all-party concern that the need for some check before proposed regulations come before the European Council of Ministers for approval.
Here I should like to associate myself with a remark made by Senator Keery that this should not be a matter for one of the Houses of Parliament. A committee of this nature with the extensive work and the peculiar demands that it will make on the Parliament in the next few years ought to be a committee of both Houses, as it will be in the Westminster Parliament. Senator Keery is perhaps an appropriate person to make this point. He has a greater knowledge than many of his colleagues in his party of the working of the Community.
The article in The Times continues later on:
With regulations flowing from Brussels at the rate of 3,500 a year, the task of M.P.s in keeping an eye on changes in the law effected through orders and regulations will be made immensely more difficult. That is why the ad hoc committee will be asked, in particular, to examine the possibility of establishing one or more “pre-legislative” select committees where the draft proposals being worked out in the Commission of the EEC in Brussels can be debated and voted on at an early stage.
Where a proposed regulation is objected to by a majority of the committee the House would be asked to give a view, and the British minister who eventually negotiates in Brussels would be expected to take into account any "instruction" from Parliament.
There is already provision, as the European Parliamentarians pointed out when they visited Britain two weeks ago, for draft regulations to go to the European Parliament for opinion and recommendation, but that is not likely to be considered by British M.P.s—in the early years of British membership at any rate —as being a satisfactory substitute for close Parliamentary examination by both Houses at Westminster.
As Mr. Rippon put it, the new ad hoc committee will be “concerned with the arrangements needed at the stage when a Community instrument is in draft”.
It is extremely important that we think now about this. If we wait until after the referendum it will be into summertime if the answer is in the affirmative, and we will be caught without the necessary structures for reviewing the regulations. Not only must this committee be able to consider regulations in draft which would be submitted to the European Parliament, but in many cases they must also consider directives, because the practice has grown up that when directives are in any way complex they will be uniform. Therefore, when they are submitted to the national Government although they are not self-executing: they do not operate directly as internal law, there is a duty on the Government to implement them.
Because it has caused difficulty in the various countries, they have now begun in many areas to standardise the directives to such an extent that, although they do filter through the national parliament, all the national parliament can do effectively is to have a debate and agree because the text is there and it is similiar to the text in the various other countries so that there is not much more control now. Whether it is a directive or a regulation, in either case the real control is a control that gets in while these regulations and directives are in draft. Our Parliament is not adequate at the moment to cope with it. It will be late in the day if we wait too long before taking steps. I found that the Taoiseach's reply to a question in the other House about this yesterday was vague in the extreme and I would welcome a more specific approach to the problem.
These are some of the points I wanted to raise on the Article 29 amendment and on the terms of the Schedule. There is also the possibility that the words "necessitated by the obligations of" mean only in the past tense and does not allow for "necessitated by the obligations of" meaning passed in the future rather than already past. However, that is another technical point.
I have shared many of the apprehensions of Senator Kelly, and yet also feel that it is almost impossible, certainly at this stage, to devise an amendment which would cater for the various problems—and they are very real problems, not fantastic examples—which face us in joining the Communities. The solution is really that this amendment would allow us to join the Communities, would allow us to accept the obligations, but it is not one that could last. I would like to see a new Constitution entirely, for this and for other very serious reasons, so that it would be possible to remove some of the real anomalies which otherwise will stay for the next few years in relation to this particular type of amendment.
Therefore, I find myself in disagreement with a statement made by the Parliamentary Secretary on the Second Stage of this debate. He is reported in the Official Report, dated 24th February, at columns 515-516:
The proposed constitutional amendment is concerned with the Treaties of Rome and Paris and with the three Communities which were established by these Treaties, that is, the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community. The constitutional amendment is required to enable us to become members of these three Communities and these three Communities only and to accept the three Treaties of Rome and Paris and no other, either present or in the future. These three Treaties are concerned only with economic, commercial and related social matters.
The proposed amendment would in no way bind this country to the acceptance of obligations falling outside the scope of the present Treaties.
That is the great danger and the great problem which we face.
There are two points I want to raise on this, mainly for the purpose of clarification. I appreciate from the remarks both of Senator Kelly and Senator Robinson that there are matters in the wording of the Schedule as it is at the moment which would certainly appear to require explanation and thought in order to clarify particular points. I do not want to try to cover that ground again, but I should like to get the Government's view on this, looking at it really from two points of view, firstly, the extent to which laws enacted or measures enacted by the State are entirely free of risk of challenge on constitutional grounds and, secondly, if they are, just how far does that go in circumstances which I want to put to the Parliamentary Secretary.
What is in my mind is that you might have a situation where the Government, in pursuance of some matter which is quite genuinely and unquestionably necessitated by the obligations of membership, might act in an unusual or unnecessary manner to implement what is required. For example, if instead of enacting legislation which in the ordinary way would come before the two Houses of the Oireachtas for discussion and debate, the Government decided to issue an order or edict in order to implement what is required by the obligations of membership and in that way avoid parliamentary discussion, I should like to know if that kind of action by the Government is one which under the terms of this amendment would be excused and would have to go unchallenged on constitutional grounds.
In other words, the question I am putting to the Parliamentary Secretary is this: if you have a situation where, genuinely in pursuance of obligations of membership, a Government have a choice of procedures or methods to implement whatever is required and if the Government decides on one particular course, then is the situation that the decision of the Government could be challenged on the grounds that it was not necessary, and that because some other course was open to them it could not be said that the particular act they did or decision they came to was necessitated by the obligations of membership? It seems to me that this contains pitfalls from both aspects. Number one: is there any danger that the present wording of the schedule would give carte blanche to the Government to act in a manner which was unusual or unnecessary and, number two, if there is a bona 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? Can it be said that because there is another method open to the Government therefore the method they chose is not absolutely necessitated? I am not raising these things from the point of view of raising difficulties but quite genuinely in order to clarify the position.
I have dealt with this legislation at some considerable length already in my reply to the Second Stage. A number of extra points have been raised today by Senators who were not present the last day. However, I will try to deal with the points raised by the Senators who contributed. I am not quite used to academic hurricanes and if I omit replying to some of the more technical legal points I am sure the Senators will appreciate that perhaps I should have had notice of the questions, because some of them were quite high flown. I do not say that with any disrespect; I say it as a matter of fact and practical observation.
I should like to deal with the points raised by Senator Kelly in his academic and indeed very persuasive and convincing argument in relation to the amendments he mentioned and their possible defects—peripheral, as he pointed out, though they may be. I should like to assure Senator Kelly— I do not know whether this assurance is what he wants—that the drafting of this Bill had the full backing of the Attorney General and the Attorney General's office. This is not to say that as human beings they do not have the defects of human beings and that they are not capable of making human mistakes. But tremendous thought and tremendous work was put into the drafting of this Bill and to that extent that might assuage the Senators' fears.
The Fine Gael Party in the Dáil have a substantial legal representation, both as regards members of the Law Library and of the solicitors profession. These points made by the Senator were not made in the other House. One amendment was moved by the Fine Gael Party in the Dáil and accepted by the Government, but I pointed out in my reply on the Second Stage, that amendment effectively made little difference to the Bill. I cannot tell Senator Kelly that his points will be examined, because I am looking for all Stages of the Bill today. However, I would urge the Senator to accept what I have said: this Bill has behind it the full force of the Attorney General's legal opinion; and it has been accepted by the Dáil and by the Senator's own party in the Dáil.
Senator Kelly also made a number of observations in relation to the Schedule and pointed out that there may be a number of technical infirmities and so on in it. I would imagine that these matters are already dealt with in the Constitution itself.
On the question of Senator Robinson's point, perhaps I should deal with the last part of her argument first. She made the observation that she was not satisfied with what she described as "rather vague replies to a Parliamentary Question the Taoiseach gave in the Dáil yesterday". I would disagree with her on that point. I was present and I think the reply was quite definitive, quite a strong reply, and it left no room for doubt. In the Dáil yesterday Deputy Ryan asked the Taoiseach to agree to the setting up of an inter-party committee to examine Community legislation and draft amendments before the Council of Ministers take decisions. The Taoiseach said that this matter was under consideration and that he intends at the appropriate time to seek the views of the other parties on it. I am not quite sure what party Senator Robinson represents, but I am sure if Senator Robinson has a particular point of view or if she has an expression of a point of view to put forward she can do so and this is her entitlement without any strings attached.
I belong to the fastest growing party, the Independents.
That is a matter of opinion, a matter of a very strict opinion. I should have made it clear that I meant elected representatives, not selected representatives.
The Taoiseach's reply was quite definite and without prevarication. I think that Senator Robinson's comment on the reply, that it was vague, was somewhat unfair. This amendment should be given a chance. I believe it will work efficiently and will meet the point made by the Senator.
I should like once more to assure the Seanad that the general discussion on our entry into the EEC will be dealt with in greater depth. The points raised by Senators Robinson, Kelly and O'Higgins can be dealt with on the general discussion on the White Paper which will probably take place immediately after Easter. I hope I am not cutting across any views the respected leader of the House may have in this regard; however, I am not giving any undertakings, I am merely speculating in the matter. I should like to conclude by once more thanking the Seanad for their expression of views and to ask that I be allowed to have this Stage and the remaining Stages today.
The Parliamentary Secretary seems in some way—perhaps he does not mean it—to resent the fact that there should be Committee Stage discussion. There was a Second Stage discussion which, of course, is a discussion on the general principles. So far as I was concerned I think I made quite clear my own attitude and the attitude of this party with regard to the principle then under discussion. Clearly Senators—and I say this whether I agree with the views they put forward or not—are entitled to have as minute a Committee Stage discussion as they wish. It may be of much greater importance to have that kind of discussion on a Bill the purpose of which is to amend the Constitution than it would be on a variety of other Bills.
I do not want to stand in the way of the Parliamentary Secretary in getting this legislation through. I am sorry he did not deal with the point I raised. I only wanted some clarification of the point involved. The Parliamentary Secretary will realise that if Senators are considering putting down any amendments to this Bill for consideration on Report Stage, then, in view of the importance of the matter under discussion, it would not be reasonable to ask the House to pass all Stages today. I am not seeking to have this Bill amended on Committee, but other Senators who may wish to do so are entitled to have their amendments considered by the House.
It was not my intention to give the impression that the Senators should not have an opportunity of tabling amendments. It is entirely a matter for Senators themselves whether they table amendments or not. We have had a fairly full discussion on the Second Stage, so there should be no need to go into any great depth on particular points I have already dealt with on Second Stage. I would respectfully suggest to Senator O'Higgins that it is entirely a matter for himself or for any other Senators who wish to put down amendments on Report Stage. It is certainly not my intention to stifle the debate or to prevent Senators making any point whatsoever.
I accept that.
The Parliamentary Secretary makes a fair point when he states that anything in the nature of a detailed technical argument cannot be dealt with lightly. That is why I hope he will not press for the passing of the remaining Stages today. I believe the points I have raised, and perhaps also those raised by Senators O'Higgins and Robinson, have got some substance and I should like to be sure that these specific points have been considered by the legal advisers of the Government before this House passes all Stages of this Bill. If the Parliamentary Secretary came back next week and said these points had been considered and there was no substance in them I would not put up any further resistance. But the House should remember it is only just over a year since we and the Dáil passed in one day a Bill relating to the Public Accounts Committee which was subsequently shredded by the Supreme Court. I have adverted to this before in this House. We have all been criticised, and perhaps the academic lawyers more than others, for having allowed that to happen. I accept my share of the blame for that. We were told at that time that that was a Bill about which there was no political disagreement, that it was a Dáil matter and that it was only intended to facilitate the workings of the Dáil. We passed that Bill without scarcely bothering to read it. I could not claim to have read it properly.
Although I entirely accept that, as the Parliamentary Secretary states, what is before us is the result of very careful thought by the legal advisers at the disposal of the Government, we ought not run the risk of making a mess of this constitutional amendment. Even if it takes a week and some more thought on everybody's part, it would be a week well spent. The fact that matters took a different course in the Dáil or that my party did not raise points there which I am raising here, does not seem to be very relevant. But if the Parliamentary Secretary would be any happier I would undertake to put my own points in concise written form and send them to him within the next day or so. His proposal that we might go into these matters when the White Paper is being discussed is not really a substitute for making sure that the Bill passes this House in a proper form. When the Bill passes through this House that is the end of it. Nothing more can be done before the people vote. It would mean going back to the small print of the Bill when we are discussing the larger implication raised by the White Paper. I appeal to the Government, although I must take some of the blame for coming late with these points, to leave the remaining Stages until next week.
I should like to support Senator Kelly on this. I have listened to both Senators Kelly and Robinson making very detailed and complex legal arguments and I would be in no position to judge the rightness or otherwise of these; but they have raised important points and I should like some time to sit down soberly, read what they have said and consider the implications as best I can. I feel this is my duty as a Member of the Seanad.
Senator Kelly's suggestion to write down the difficult points he has made and arguments he has put forward and send them to the Parliamentary Secretary should help. This also applies to Senator Robinson. We must be careful not just to do the right thing but to be seen to do the right thing. We face a referendum on this issue. There will be a tremendous amount of hot air and hurt feelings in this referendum, if my reading of the situation is right. I strongly support entry to the EEC. If we want to be seen to treat this Bill with the seriousness it deserves, the Government would help a great deal in this respect if the final Stages of the Bill could be taken after a reasonable period.
We are all in a sweet, reasonable mood here today and I do not wish to say anything to upset that, but let us face facts and talk sense. I have listened very attentively to Senator John Kelly's excellent speech and to Senator Robinson. I found it difficult to follow Senator Robinson, she spoke so fast—she appeared to be racing against the clock trying to catch a plane to Brussels. However, from what I gathered from both speeches, these two excellent Members of the Seanad admitted they did not see much possibility of drafting an amendment that would cover the points they had in mind. Therefore, why go to the trouble now of again postponing a decision on this Bill? The Bill has been before the Seanad and every Member has surely read it and thought over it and we have heard the arguments here today. No proposition has been put up which might result in a sensible amendment to the Bill. There will be the adjournment of the Dáil and the Seanad for the Easter Recess. By the time we resume the whole machinery will be gummed up to such an extent that there will be no referendum until July or August, by which time the whole thing will have become impossible.
I suggest earnestly to the Seanad that they should agree to the remaining Stages now and to rely on the fact that the legal advisers to the Government and the Government and the Ministers concerned will take serious note of the tone of the discussion here today and of the suggestions made by the Senators who have given it such thought and study in the meantime.
To what effect?
It will be to no effect if we pass all Stages now because any possibility of amending the thing will be gone. I thank Senator Ó Maoláin for his kind reference to my speech but I did suggest a way in which it might be improved upon. It would be for the Attorney General's office to consider whether it could be done in this way, not by going back and doing what the Parliamentary Secretary explained could not be done, namely, singling out the individual Articles of the Constitution likely to be affected, but by the opposite process of entrenching certain Articles against rescue by the operation of this section—in other words, saying that this particular amendment will not operate to amend the amendment provisions of the Constitution itself, will not operate to abridge the fundamental rights Articles. I think, if I might speak from the Fine Gael side to the Fianna Fáil side, there might be some political sense in this. It might make the thing a more acceptable political parcel when the referendum comes and might deprive it of the uncertainties which now hang around it and are such an obvious target for those who will be urging people to vote "No". I can well imagine that a further subsection, setting out certain Articles which under no conditions would be rescued by this Article, would be legally workable and politically advantageous.
Senator Kelly is right in thinking there are certain people who are concerned with the fact that the fundamental rights Articles of the Constitution might be affected by this amendment. That has caused a certain amount of worry. I cannot conceive how the fundamental rights section of the Constitution could be affected by this. I have given it a lot of thought and there is no conceivable Act, regulation or anything of that kind which could be passed by the Oireachtas which would affect fundamental rights, bearing in mind the limitation placed on the Acts, laws and so on which could be passed on the basis that they must be within the Treaty of Rome and must be necessitated by our obligations under that Treaty. Although the kind of precaution mentioned by Senator Kelly might be a useful one from the public relations point of view, in that people might be reassured, from the practical point of view there is not the faintest possible danger that the fundamental rights Articles could be affected by any law or regulation passed by the Communities or the State here as a result of our membership of the Communities. I agree this is a fear some people may have. From the practical point of view, however, I do not think it is a fear they need have. Consequently, I do not think any further amendment is necessary.
I, too, would welcome some time to reflect on what has been said in the House today. There have been serious hesitations expressed. The Parliamentary Secretary referred to the fact that some of us were absent last day. We have already explained and offered our regrets. Nevertheless, I read with care the Second Reading debate and I have also read the debates in the Dáil. Matters have been raised here which have not been raised in the other House or on the Second Reading. As Senator O'Higgins has said, this is the function of the Committee Stage. It is one of the reasons why we go through these different Stages.
I am sorry the Parliamentary Secretary spent such a long time on a rather less important comment I made on the Taoiseach's statement as I read it in The Irish Times about the setting up of the committee. I am glad to know this committee will be set up if and when it becomes relevant. The Parliamentary Secretary did not try to meet much more important points which I raised. I can understand his point in that they may sound rather technical.
There are so many of them.
Yes. That is why I wish to emphasise the more serious ones which I do not think have been met and which I see not as academic nor as even particularly technical points but as very serious problems. The first of these is—again looking at the Parliamentary Secretary's statement which I have already quoted—that "the proposed amendment would in no way bind this country to the acceptance of obligations falling outside the scope of the present Treaties". What I am saying is that many of the policies now being evolved are deemed by some people to fall outside the scope of the present Treaties. About a fortnight ago there was a very detailed proposal on environmental policy. There is nothing in the Treaties about environmental policy. What about a commitment to this? This will not be in the scope of the present obligations. What about the full implementation of the economic and monetary policy, about the powers to be given to the Committee of the Central Banks or to other institutions outside the present framework to take decisions which at the moment are taken in relation to budgetary matters and estimate expenditure by our national Parliament? What about the matters which have evolved but which do not arise out of the obligations of the Treaties? Have the Government, the Attorney General and his committee really considered the danger of the present wording of the amendment Bill? This is the most serious objection I have to the present wording. I regret I was not able to make this objection on Second Stage and to try to formulate an amendment. I will be prepared within the next week to try to formulate an amendment to see if this point can be met.
I am not entirely unhappy about the fact that, even if this Bill is passed, we would have a problem. A number of other countries who are members of the Community have had problems with their constitutional position. This is something which can be worked out later. But, if we are passing a Bill to amend our Constitution to allow us to go into the Communities, we should not pass one which confines us entirely to the express Treaty obligations as set out in these Treaties, most of which have either been implemented or are no longer relevant because the stages for them have passed. We are joining a Community which has gone beyond these commitments, which has evolved different policies, which is going forward towards much closer economic and monetary union, towards environmental union, a much stronger regional policy—which again has a very doubtful strict Treaty basis—towards a common foreign policy, for which there is no strict Treaty basis.
We may be in very serious trouble soon, and not in the indefinite future, when one talks of the possibility of political union. The Parliamentary Secretary is prepared to concede that the Government would come back to Parliament and to the people by referendum if there was a further Treaty relating to political union. My problem is our constitutional position in relation to the commitments already accepted, decisions already taken, resolutions passed by the Council of Ministers which go beyond the strict terms of the Treaty. This is a real problem and one which merits consideration. I speak with diffidence. If I am right that there is a real problem here, then perhaps this can be cured while the Bill is still going through Parliament.
I listened with interest to what Senator Robinson had to say. It seems to me she is raising points which I do not think are relevant to the decision we had hoped to make this afternoon, and probably will make, to pass all Stages of this Bill. The points she has made are certainly valuable looking to the future. She has raised many of the interesting points which those of us who are keenly interested in the development of the European Economic Community look forward to as the challenges of the future and as matters which will have exciting implications for institutional development here. I say that to make it quite clear I do not oppose in any way the points Senator Robinson has made per se—indeed I was both sympathetic and interested in what she had to say.
An anxiety which the Government share with the public at large is the anxiety that the legislation which we would pass would be the minimum necessary to achieve our goal of entering the European Economic Community. We have successfully met the arguments that the proposal put forward was too wide, and part of this was the acceptance of the amendment proposed in the Dáil by the Fine Gael Party. It we follow the logic of Senator Robinson's argument that she would now have us raising all sorts of shares— in fact, broadening the whole issue and arousing fears. I feel she has not raised any point which could not be met in due course as it arises in definite form. I do not think she has raised any matter that will become a serious issue within the next 12 months or so. I do not see any reason why Senator Robinson should smile at that.
Is 12 months the lifespan of this Bill?
It is a Bill which was drafted to meet a particular situation. The whole point of having bodies which are free to change laws is that circumstances change. As I said on the Second Stage, we are entering a dynamic situation where neither we nor the other countries of Europe can predict with certainty what sort of situations will arise where the Community must decide to act together in its own interest in a way that few countries can imagine now.
May I refer to one specific example Senator Robinson gave concerning environmental policy, conservation matters, and so on? These are all matters in which I am keenly interested and to which I am sympathetic. We know that we will be represented at the forthcoming conference of the United Nations on matters of environment. It is quite clear—and it may not have anything at all to do with the EEC—that countries will have to co-operate internationally to deal with problems of environment. It is completely wide of the mark to suggest that anything in this present legislation will in any way inhabit or embarrass the Government in participating in international action on matters of environment.
The Government are not the Community. The Community are formulating their own policy and this would involve regulations of the Community being operative here. Regulations would not arise from Treaty obligations so how could they be operative here?
The Senator cannot state categorically that regulations will arise dealing with matters which are not dealt with in or necessitated by the Treaty of Rome. I do not think it is a prediction that we are under any obligation to accept. As I have said, it seems to be wide of the mark at this stage. I regard a proposal to widen the discussion as quite misleading. The public would, quite rightly, regard it as undesirable, and in many ways a breach of the faith which the Government have managed to establish by proposing this Bill in its confined terms.
One of the points I intended to make has been made by Senator Keery. Apart from that, I would not like to be taken as going along with the general trend of the remarks made by Senator Keery. As I understood it, Senator Robinson was making the point that, if there are future developments which are not now covered by the various Treaties, this constitutional amendment may not be strong enough to afford them the protection against challenge on grounds of constitutionality. She is probably correct in that. I have been approaching this Bill believing that would be the situation, and that if there were other developments arising in the Community anything required to be done by us in order to implement those developments would have to be done in accordance with our Constitution. If anything arose which is not now provided for, is not now envisaged in this amendment, and which would run counter to our Constitution, a further constitutional amendment and referendum would be necessary. It is on that basis I have been approaching this Bill and I hope it is the correct basis.
I want to make an appeal to Senator Ó Maoláin in relation to this. I and my colleagues in the Fine Gael Party are anxious that this referendum should be carried and we propose campaigning vigorously towards that end. It would be a tragedy if this got off on the wrong foot and, merely for the sake of pushing all Stages through today, Senators were forced to divide on the matter. I do not want to divide on it but the new points which have been put up here today, principally by Senator Kelly and Senator Robinson, should at least be properly considered.
I am not criticising the Parliamentary Secretary in this regard. He could not be expected to come in here and deal, off the cuff, with the kind of detailed and complex points raised here. But I would expect him—I feel sure he has already given an indication that this would be his desire— in those circumstances to afford sufficient time for these points to be considered. Senator Kelly has already put himself on record as saying that he will be quite happy provided he knows these points have been considered by the legal people charged with that responsibility. Then the Parliamentary Secretary could come back here and say that that kind of consideration has been given to the arguments and that the decision was that there is no substance in them which would warrant a change or an amendment in the Bill. That is a very fair and generous offer.
I would strongly urge on the leader of the House not to adopt the attitude that, whether we on this side of the House like it or not, we are going to be forced to take all Stages today. It would be an extremely bad exercise in public relations from the point of view of a party that wishes to get this referendum accepted by the people if the impression were given that there was a division on it in the Seanad, as between two parties supporting the proposal. It would be bound to give rise to the feeling among people, and particularly among Fine Gael supporters, that because we divided on it there is something wrong with it.
I do not want to give that impression. At the same time I feel that the privileges of ordinary Members of the Seanad are being called in question here by the attitude which has been indicated by the leader of the House, and as I understood him, also by Senator Keery. It would be tragic if that should happen. I want to make it clear at this stage that, if the leader of the House forces a division on this matter, that division is against our wishes and if we are forced to divide on it we shall be dividing on a matter of procedure, on a matter of the rights and privileges of the Members of this House, and not in an atmosphere of opposition to the terms of the Bill, even as it stands at the moment. Certainly it is not with any desire to make things difficult so far as the people are concerned in the referendum.
My compliments to Senator O'Higgins. He is a most astute politician. I should like to refer to a few remarks he made in his earlier first speech. For the information of the bright young boys who inform the people of Ireland every day of what has or has not gone on in the Houses of Parliament, and who do not always appear to be able to understand what did or did not happen, may I emphasise, in reply to what Senator O'Higgins insinuated earlier in his speech, that there was no attempt whatsoever here to curb discussion on this Bill—none whatever. We spent a whole day on this debate and we can keep on talking, all night, if you wish. I would be quite happy about it. However, it often happens that the impression seems to get abroad in the newspapers in the morning, through some agency, that an attempt has been made—as some of the more ignorant newspaper leader writers said—to ram something down the throats of the Opposition Members. Nobody is trying to ram anything down their throats. The only thing that prompted me to make the suggestion was the fact that Senator Kelly and Senator Robinson both admitted the immense difficulty of framing amendments which would solve the problems they had in mind. Both admitted that they could not see how such amendments could be framed. I have no objection to letting them try, if they feel they could do it. But, having admitted that it could not be done, I do not see any sense in postponing the final Stages of this Bill for another period in order to let them tinker around with ways and means of getting around the existing amendment or putting in an additional one, as Senator Kelly said.
With regard to what Senator O'Higgins has said, there is no question whatever of attempting to divide the House on this motion. My anxiety was that we should get this Bill out of the Seanad so that it could be enacted as soon as possible in order to enable the machinery of the referendum to get into action as quickly as possible. However, if it is felt that this is a deprivation of the rights of any Senator, then I have no intention whatever of trying to deprive any Senator of his rights on an important measure of this nature. If Senator Kelly and Senator Robinson will work on these amendments and produce something out of the hat for us I shall be very much surprised. There is one thing I should like to see. On many other occasions we had the suggestion on Committee Stage that the Report Stage could not be proceeded with because the Opposition wanted to put down amendments. There is one Senator in particular over yonder, who shall be nameless, who has a great habit of doing that. He says: "We want to suggest amendments for the Report Stage." Immediately, it is agreed to have Report Stage the following week. Next week we take the Report Stage and no amendments appear. It is most annoying and frustrating. I hope, therefore, that Senators will do their best to produce something we can get our teeth into and either tear to pieces or applaud, as the case may be, and see what the Seanad thinks of them generally.
I have no objection whatever to this proposal and if the Senators want ample time, I am quite prepared to allow it.
I am very glad that the Leader of the House has taken this attitude. I did not undertake to produce amendments, but Senator Ó Maoláin appears to have challenged me to do so.
Challenge withdrawn.
I shall try. What I was really anxious about was that the Government would have an opportunity of considering if the points made by Senator Robinson, Senator O'Higgins and myself had any substance. Possibly they have not. I am anxious, as we are all anxious in the two parties, that there should be no slip in this matter and that we should not make a mess of it. The way to ensure that does not happen is to give time for considering any point raised with even a shadow of substance in it. I did not promise to introduce an amendment. Naturally, I shall have to consider the views of my party before doing so. I should be happy myself if the Government considered the points I raised. I shall elaborate on them, if they wish, and if it is of any help, apart from what is written into the Seanad record. I should be happy to come back within 24 hours or 48 hours, if Senators were satisfied that no danger is presented by this wording.
I am glad that time will be given to consider some of the points raised today. In view of that, I should like to comment on a remark made by Senator O'Higgins. The Senator felt he understood the point I was making. If it was only the point that Senator O'Higgins was referring to, I certainly would not delay the time of the House at this stage. It is not a matter of what will arise in the future. The problem with the Communities at the point at which Ireland has applied to join, and is considering joining, is that the Communities have largely evolved beyond the strict Treaty obligations of the Treaties mentioned in this constitutional amendment. I say this with great seriousness. I am not trying to be frivolous or difficult. I am in agreement with entering Europe; I want us to go into the Communities. But, as with Senator Kelly, I do not want us to make a mess of it. I do not want the courts faced—not in the far distant future but immediately—with problems arising out of our entry. The major area where there is a problem is in the area of economic and monetary policy. This is not in the future. It is an area where a resolution of the Council has been made. This is part of the existing work of the Community undertaking. A decision was taken by the Council in a resolution of March, 1971, to implement economic and monetary union. There is great political pressure from Germany and France to accelerate the pace of economic and monetary union.
If the Government do not accept my solitary voice in making this point, I would ask that they seek legal opinion from the six Community countries as to what is the legal treaty basis for the economic and monetary union. I would be prepared to state that they will not get a strict legal basis under the present Treaty. I think they will get some opinion from some countries that it evolves out of Article 235. I am prepared to say that one country, namely France, will not accept the position that it has grown out of an agreement by the governments. That is not the obligation of the Treaty: that is an agreement by the six countries to go further than the strict Treaty obligation. That is a decision taken. What happens when we go to implement that? What happens if there is a challenge before our courts? They have to look at the strict treaty obligations, they have to look at our Act amending the Constitution, and they have to see the constitutional implications of economic and monetary union at the moment in regard to the role of national parliament in relation to the budget, to estimates, to expenditure, and so on. What happens if the Community organs, such as the Committee of Central Bankers and other institutions, are beginning to assume power in relation to the harmonisation of budgets? Will they tell us what is the area in the Treaty under which we can operate a budget? This is within the framework of an existing decision and policy of the Community. I do not think it is within the framework of this amendment to the Treaty.
I do not want to go into environmental policy, which I agree with Senator Keery is more in the future, although I am talking about Community environmental policy and not vague United Nations conventions. They pose no problems at all. In relation to the D'avignon Committee, this is outside the strict Treaty terms. It is an extra Community organ which has been set up by the agreement of the countries. It is evolving foreign policy. It is evolving, particularly, a European attitude towards trade with the United States—a European attitude so that Europe can speak with one voice next year at the East-West Security Conference. This is a Security Conference in which the Western European countries, Russia, Canada and the United States can participate. Whoever the spokesmen are, will they speak for Ireland? What is the Treaty basis for this? There is none, and this will happen next year.
If I am correct in these matters, I think they should be considered. I would ask the Government to seek legal opinion from the various legal departments of the existing countries of the Community as to what they think is the strict legal basis for decisions already taken and policies at-ready in the process of being operated by the Communities, because we are tieing ourselves to the strict legal basis in our constitutional amendment.
What we are considering at the moment is the provision for the obligations which we will undertake by being members of the Communities. We wish to define these obligations as carefully as possible. I have considerable sympathy with the fears which Senator Kelly has in regard to the definition and limitation of these obligations. Any views he puts forward between now and the next Stage should be very carefully considered.
What Senator Robinson is suggesting is the direct opposite. She is suggesting that we should consider widening the limitations so as to provide for certain developments that are taking place in the Communities. Although I recognise that this will be a problem, certainly I would not be in sympathy with any effort to widen the definition of our obligations. This would be rather dangerous and, as the country is already being asked to take a very large step, it would not like to be asked to take an even larger step.
It should be recognised that there are two ways in which we can deal with further steps which the Communities want to take, such as those Senator Robinson mentioned. First of all, if it is a really serious step and a radical departure from what we are already undertaking, it would be necessary to have a further referendum. There is an interim situation which can be dealt with from the practical point of view. It is quite possible in the future—not only possible but it will almost certainly happen—that certain proposals will be discussed by the Communities on desirable developments of one kind or another, such as conservation. Although the proposals made might not—and would almost certainly not —come within the present Treaties, we might decide, as a country, that the proposals made were proposals with which we would agree. In so far as laws were necessary to comply with them, the Oireachtas could pass laws which would enable us to co-operate with the other members of the Communities in effecting what was necessary.
The important distinction we must make is that in such a case we would not be bound by any laws passed by the Communities. We would not be bound to accept the proposals made by the Communities but the Oireachtas would decide if these proposals were worth co-ordinating with and then we, as a country would, without obligation, decide to go along with them. After all, we make these kind of decisions, for instance, in the Council of Europe. Many suggestions are made there and we decide, quite voluntarily, to pass laws, regulations and so on to comply with them, but we are not bound to do so. Consequently, there is an interim situation which would meet some of the points which Senator Robinson has made— where, although not bound to do so, under the existing Treaties, we would agree to co-operate and co-ordinate with the Communities. This could go a long way without reaching a stage where we would consider it necessary to have another referendum to deal with the point.
In the long run, what we are envisaging when we talk about amendments of the Constitution, amounts to this: an individual citizen may feel that some law passed by Brussels prejudices him in some way and that he should be in the position of being able to say: "When I voted `Yes' in the referendum and accepted certain obligations set out in the three Treaties, this was not one of the obligations under these Treaties and I am not bound by this law." He can appeal to the Supreme Court and get a decision from it that this particular law was not necessitated by our obligations under the three Treaties. Consequently, he is not bound by this law. There is nothing at all to stop this country deciding that certain new proposals by the Communities are good ones and that we ourselves will pass laws to enable us to co-ordinate with the proposals made by the Communities.
Cuireadh agus aontaíodh an cheist.
Question put and agreed to.
ALT 2.
SECTION 2.
Tairgeadh an cheist: "Go bhfanfaidh alt a 2 mar chuid den Bhille."
Question proposed: "That section 2 stand part of the Bill."
Is it normal that the year be changed from the date of the Bill? I notice that it is the "Third Amendment of the Constitution Bill, 1971 ", and then it is the "Third Amendment of the Constitution Act, 1972". I do not remember this before.
I think it is automatically changed.
Cuireadh agus aontaíodh an cheist.
Question put and agreed to.
Aontaíodh an Sceideal.
Schedule agreed to.
Aontaíodh an Réamhrá.
Preamble agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasú.
Bill reported without amendment.
Next stage?
Would Senator Kelly give me an indication of how long he thinks might be required?
I will get to work at once but I cannot speak for the other Senators.
What about the 13th?
There is no need for as long as that.
Ordaíodh go dtógfaí Céim na Tuarascála Dé Céadaoin, 8 Márta, 1972.
Report Stage ordered for Wednesday, 8th March, 1972.
The Seanad adjourned at 5. p.m. until 3 p.m. on Wednesday, 8th March, 1972.