Amendment No. 3 is consequential on amendment No. 1 and both amendments may be discussed together.
An tAonú Leasú Déag ar an mBunreacht, 1992: An Coiste agus na Céimeanna Deiridh. Eleventh Amendment of the Constitution Bill, 1992: Committee and Final Stages
ALT 1.
SECTION 1.
An Leas-Chathaoirleach
Tairgim leasú Uimh. 1:
I leathanach 5, línte 14 go 19 a scriosadh agus an méid seo a leanas a chur ina n-ionad:
"(a) In diaidh an dara abairt i bhfo-alt 3 d'alt 4 den téacs Gaeilge an teásc atá leagtha amach i gCuid I den sceideal a ghabhann leis an Acht seo a chur isteach.
(b) In diaidh an dara abairt i bhfo alt 3 d'alt 4 den téasc Sacs Béarla an teács atá leagtha amach i gCuid II den Sceideal a ghabhann leis an Acht seo a chur isteach.'
I move amendment No. 1:
In page 4, to delete lines 14 to 19, and substitute the following:
"(a) by the insertion after the second sentence of subsection 3 of section 4 of the Irish Text the text set out in Part I of the Schedule to this Act;
(b) by the insertion after the second sentence of subsection 3 of section 4 of the English text the text set out in Part II of the Schedule to this Act.'
The process by which the country has progressed constitutionally through its membership of the European Community has been a little convoluted. First of all we had the Accession Treaties which were approved by the people in 1972 and which resulted in the insertion into the Constitution of a clause which permitted the State to sign the Treaties and also a form of words which ensured that anything resulting from membership of the Communities would not be subject to constitutional challenge. That was a perfectly logical position at that stage, because all of the activities under the three treaties we signed at that stage were subject to the European Court of Justice. There could be no question therefore of any arbitrary actions by governments or by an intergovernmental council which would not be subject to either review by the European Court of Justice, to ensure that they were consistent with European law, or to the Irish Constitution where European law did not take precedence. We then came, in the 1980s, to the Single European Act which the then Coalition Government of Fine Gael and Labour believed did not need a referendum and which was ratified by both Houses of the Oireachtas with, as far as I know, only myself voting against.
On the wrong side always.
I have actually increased the scale of support by a factor of 400 per cent since the Single European Act which went through both Houses and had to be challenged constitutionally by Mr. Eamon Crotty. The Supreme Court ultimately handed down a judgment which contained two different elements. The first part of the Supreme Court judgment referred to Article 29.4.3º of the Constitution, which is what this proposed Bill will amend, and said that that must be construed as an authorisation given to the State not only to join the Communities as they stood in 1973 but also: "to join in amendments of the Treaties so long as such amendments do not alter the essential scope or objective of the Communities."
The Supreme Court then went on to say: "Neither the proposed changes from unanimity to qualified majority, nor the identification of topics which, while now separately stated, are within the original aims and objectives of the EEC, bring these proposed amendments outside the scope...". Essentially what the Supreme Court said was that the economic provisions of the Single European Act, because they were within the scope and objectives of the Communities, were not contrary to the Constitution. They were, effectively, implicitly covered by the 1972 Referendum verdict of the people.
The area of the Single European Act which the Supreme Court found to be repugnant to the Constitution was the area on a common foreign policy because, they said, that was not contained in the objectives and scope of the founding Treaties of the European Communities. Therefore it was not envisaged as part of the initial amendment to the Constitution. Therefore the State — at that stage a Fianna Fáil Government — proposed the perfectly reasonable solution of putting in a statement "that the State may ratify the Single European Act."
We now come to the situation pertaining to this amendment. Many people assumed that this amendment would simply contain the words "that the State may ratify the Treaty of European Union signed at Maastricht on 7 February 1992, and may become a member of the Union." That is what would have been necessary to ensure that would be no constitutional challenge. Instead, we have this extraordinary form of words, which is essentially the same as that used in the Treaty of Rome. It states:
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.
Essentially, it says that nothing arising out of the Treaty of European Union can be prevented from happening by any provision in the Irish Constitution. That is consistent and logical as far as it applies to all the Titles of the Treaty — except Titles V and VI which come within the competence of the European Court of Justice. Titles V and VI, with one small exception in Title VI, are specifically excluded from the area of competence of the European Court of Justice. They are matters for intergovernmental conferences where decisions, admittedly, must be taken unanimously. Even on that, while people are entitled to look for unanimity, an extraordinary Protocol with mysterious wording asserts that they must do their best not to get in the way of unanimity. In principle they must agree unanimously.
The problem is that anything that is agreed unanimously under Titles V and VI of the Treaty of European Union is neither subject to review within the European Court of Justice nor, because of the ham-fisted wording of this amendment, subject to review by the Irish Supreme Court. I repeat: the judgment of the Supreme Court said that anything that came within the scope or objectives of a Treaty when it was ratified, was covered. That was fine when what came within the scope of the Treaty was subject to the European Court of Justice. That gave the citizen some protection from arbitrary actions by either the Executive of this State or in this case the inter-governmental conference. What we now have are two parts of the Treaty on European Union which are subject to no court. They cannot be brought before the European Court of Justice and this hamfisted amendment specifically states that nothing arising from those Titles can be brought before the Irish Supreme Court either. That is why Senator Murphy and I challenged the Minister when he said there would have to be a referendum on European defence, whether it be European policy or a European army.
This amendment, whether it was so intended is a matter of opinion — states that any laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof cannot be prevented from coming into force by virtue of the Irish Constitution. Whether we have a defence policy next year, which is feasible under the Treaty or in 1996, which is the way people choose to interpret it, what we have already said is that anything envisaged by the Treaty, anything that arises out of the Treaty on European Union, is already precluded from being challenged under the Constitution.
A referendum is not legally required. This is written in here in either deliberately broad or offensively sloppy language, I am not sure which. It is a form of words which was used to deal with Treaties which were subject to very clear judicial review through the European Court of Justice. We have now inserted a similar form of language which applies to two Titles of the Treaty on European Union, neither of which is subject to judicial review in any court. That is what I will argue and will continue to argue during the referendum campaign — probably in private, singing to myself, since I am sure we will not be allowed on RTE for the rest of the campaign——
That is a surprise for the Senator, a new departure.
My life is full of surprises and the Senator is one of the great surprises of my life.
The Senator is no surprise to me.
The Senator's continuing survival in politics is a matter of great surprise to me.
An Leas-Chathaoirleach
Senator Ryan, please.
Thank God I am not depending on Senator Ryan.
The Senator might be. I am sorry a Leas-Chathaoirligh. It was all Senator O'Keeffe's fault, he interrupted me.
I want the Minister not simply to tell me not to worry but to explain where the legal opinion of a least two eminent barristers is wrong. Can the Minister tell me where we are wrong on the legal side. I do not want to argue yet about the contents of the Treaty — we will not be allowed to do so because we will not have time — but I simply want to know where we are wrong legally.
Let me move on to Title VI — provisions on Co-operation in the fields of Justice and Home Affairs. Title VI, with the exception of Article 3 (2) (c), is not subject to the European Court of Justice. Let us remember what is in Title VI: it makes provision for judicial co-operation on civil matters, for co-operation in combating drug addiction, combating and preventing terrorism and judicial co-operation in criminal matters for adopting joint positions and, using the appropriate form of procedures, promotes any co-operation contributing to the pursuit of the objectives, the adoption of joint action where the objectives of the Union can be better attained by a joint action, etc. That involves the possibility of such things as extradition; it involves — dare I say it — restricting people's right to travel because of an attempt to combat terrorism, drug trafficking, etc.; it involves restricting the rights of families to be reunited on the grounds of a common emigration policy.
Because of the way this amendment is written, none of those is subject to review either in the European Court of Justice or under the Irish Constitution. The only possible saver is a reference to the European Convention on Fundamental Rights and Human Freedoms. On many issues, the European Convention on Human Rights, while it was salutarily useful in the case of Senator Norris, is not more than the lowest common denominator of the constitutional provisions of most of its signatories. In many ways it is a far less stringent protector of the rights of the citizen than the Irish Constitution. As it is now written, the amendment takes from us the protection we have under the Irish Constitution in those areas of justice, home affairs, police co-operation, etc. It allows no appeal to the European Court of Justice and leaves the possibility of an appeal to a far less vigorous protector of our human rights, the European Convention on Human Rights. That is why a number of eminent lawyers have expressed alarm, to say the least, at the wording of the amendment; that is the objective of my amendment. My amendment simply changes the wording to say that the State may ratify the Treaty on European Union — there is a misprint about unions there — signed at Maastricht on the 7 day of February 1992, and may become a member of the Union and the State may ratify the agreement relating to Community patents drawn up, etc.
That simply enables the State to ratify the Treaty. It does not provide open-ended protection from constitutional challenge for areas of this Treaty which are not subject to any judicial review. It leaves us in a position of being able, at least, to argue our case before the Irish Supreme Court. It also makes it much more likely that we would have to have a referendum on the defence issue than would be the case under the present position. The amendment is written in a constructive spirit and would not inhibit the overwhelming decision of both Houses of the Oireachtas to have this referendum. The Treaty will still be ratified; Ireland will still — regrettably, as the House knows, in my opinion — become a member of the European Union, but the extraordinarily sloppy drafting would be replaced by simple wording which would enable us to do all that is necessary and which many eminent lawyers believe is all that is necessary.
Many people hold the view that somebody in some Government Department is fed up with referenda on European Union and decided that we will have to be like the more sophisticated citizens in the rest of Europe and avoid the nuisance of referenda. Therefore, we have written in an open-ended amendment which enables anything that springs out of this Treaty to be introduced into Irish law without any challenge.
I do not want to take up too much time on this because I know Fine Gael have tabled a very important amendment on the right to travel which deserves detailed consideration. However, I would like the Minister to explain where the legal advice is wrong, not simply to state that he is advised by the Attorney General, but to tell us the legal, logical arguments by which the present position can be justified. It appears, as it stands, that we are opening the possibility of huge uncertainty in a number of areas about any right of citizens or groups within a society to ensure that we are not shanghaied simply by the decision of inter-governmental conferences and I ask the Minister not to tell us that the decision has to be unanimous.
If a citizen does not have the right to independent adjudication on a dispute with the Executive, a citizen has no rights at all. The fundamental basis of democracy is the separation of powers so that you cannot have arbitrary actions by any Executive which are not subject to judicial review. To simply say that the Government will have a veto is not the same as guaranteeing the rights of the citizen. That leaves absolute power, or close to unchallengeable powers, in some areas, in the hands of the Government and that is not democracy, or what I understood the vision of Europe to represent.
I share Senator Ryan's reservations on the text of the referendum on which we will be voting on 18 June. In my opinion, this text would be better if it was strictly limited to the content and substance of the Treaty without taking the additional step to provide for obligations that may be necessitated in implementing the Treaty. Of course, we have to undertake obligations on the implementation of the Treaty, but the net is spread too wide in Part II, paragraph 5º of the Schedule. As Senator Ryan said, that additional requirement, as it is phrased, is likely to give rise to substantial contrasting opinion from leading senior counsel. It could impose obligations on us that might go too far in relation to matters arising out of the objectives of the Treaty as distinct from the text and substance of the Treaty. We have introduced extraneous material here and it would be best if we could have divested ourselves of it. A simple statement on ratification of the Treaty would best serve the referendum on 18 June. Undoubtedly both additional subsections will be confusing to the electorate because they do not know anything about the Community patents that are mentioned in paragraph (6), and the implications necessitating certain measures to be implemented and adopted from our obligations in relation to the membership of the European Union as distinct from the Communities. It lends itself to that additional sector which need not have been covered — Common Foreign and Security Policy and Co-operation in the fields of Justice and Home Affairs because we have been assured all that is down the road, and that security and devising a defence position will be the subject to a referendum after 1996 rather than arising out of an interpretation of our obligations from membership. If the Minister considers deleting paragraph (5), I believe an improved referendum text will be put before the people.
I support the case made by Senators Ryan and Upton. I am not sure if the amendment has been formally seconded, but I do so provisionally.
I share the concern expressed by Senator Ryan that we are making an unnecessary quantum leap in the dark into new areas of competences in the proposed European Union which are constitutionally immune. This is truly alarming and I would like to hear again from the Minister, where it is stated in the small print that there has to be another referendum if we enter a defence agreement. As well as considering the legal position, and so on, it is also useful to consider what is likely to be the factual developing position of Ireland in the Union over the next four or five years.
At the moment the Government and the main Opposition Party want to say goodbye to neutrality. They regard it as a tedious relic of the past and something about which our European partners are uneasy and wonder if we should not put our money where our mouth is — or rather, put our young people's service where the money is coming from. Over the next five years there will be a subtle acclimatisation of the people to the idea that neutrality has finally to go. I think more and more every year we will move into the Western European Union. No decision has been taken as yet and while the Government are willing to sell out neutrality they are electorally fearful to spell it out in full, but that will come gradually in the next four or five years. By 1996, I believe people will be acclimatised to the idea that there has to be a defence union.
Of course, the continual reminder is that we are ungrateful if we do not join the union considering what we are getting from it, and that will be hammered home again and again. By 1996 people will be discouraged from looking for a referendum. Not only is there no constitutional requirement for a referendum under the new competences, but there will be a psychological climate established whereby people will be conditioned not to look for a referendum.
I will not repeat all the arguments I made this morning but I am sure the Minister heard and noted them and I quoted extensively from learned counsel's advice and briefing on this matter. Titles V and VI are the inter-governmental pillars of the union Treaty. The public policy matters covered by these Titles are outside the scope of European Community law, the jurisprudence of the European Court of Justice and all the main European Community institutions. In addition, the Government, as a result of the unnecessarily wide scope of this referendum — which Senator Ryan has sought to change — are placing anything that may be done here in the future in this regard outside the scope of an Irish constitutional challenge as long as any of these changes can be construed as being necessitated by the obligations of union membership. Again, the Crotty case is, as Senator Ryan said, absolutely essential to understanding the significance of this. Following the Crotty case, it was held that Community Treaties could be added to or amended virtually indefinitely as long as those amendments fell within the scope of the objectives of the Treaties.
The objectives of the Maastricht Treaty, as stated in section B of the Treaty, are extraordinarily wide and capable of virtually infinite extension in all areas of public policy, including trade union legislation, harmonisation of asylum policy and, of course, foreign and defence policies. As I said this morning, one person's defence may well be another person's aggression for example, in the case of the Gulf War.
There has been much talk about economic matters and the benefits that will flow to us from Maastricht but what will happen if the economic interests of this new European Union are deemed to be threatened by alterations in the political complexion of the Middle East, for example, and oil supply lines are affected? Does a military intervention by the European Union at that point become a matter of defending our economic interests or is it a matter of military aggression? The Irish people will not be consulted about this and under the Treaty, as at present worded, we will have lost our right to withdraw from such military adventures. The Dáil will have lost its right and Irish citizens will have no recourse under European law, or indeed Irish constitutional law. Therefore, we are handing away a very important democratic safeguard in a manner in which — and I have been advised by leading counsel in this regard — no other European country has done. This is something that needs to be considered. In most of the other countries of the proposed union, if not all, many of the safeguards which we are handing away by assenting to this wording have been retained, so there is a substantial legal difference created by the wording of this Treaty between the rights of Irish citizens and the rights of citizens in other European countries.
I am somewhat taken aback by the contributions of the last speaker and, indeed, the two speakers before him. It appears they want to be Europeans, but they want this country to stand back.
So much so that they would oppose supplying chemical weapons to Saddam Hussein, for example. That is the kind of thing we do not want to do.
I did not interrupt Senator Norris when he was making his contribution and I would appreciate if he would not interrupt me. An attempt is being made here to split hairs, to ask this country to be part of Europe, yet to stand back and to be lesser Europeans than some of the other countries in the union. That message should not be sent from this House and I certainly would not agree with such message. The understanding of Ireland and the Irish people to date is that we are very good Europeans; in fact, we are held in very high standing as regards our approach to Europe. These amendments would in some way deflect and, indeed, attempt to change that position. That is not helpful and is a serious attempt to divide on small matters, but matters that could give the wrong impression. I do not believe the Minister, or indeed this side of the House, could agree to those amendments.
There have been suggestions that the terms of the constitutional amendment have been drawn too widely and that it should have referred only to "necessitated by the obligations of membership of the Communities", leaving out the two non-Community pillars of the union. The wording "necessitated by the obligations of membership" is not new, it is already contained in the existing Article 29.4.3. In itself, it is restrictive and deliberately so, in order not to confer too open a constitutional protection. It contrasts with the words "consequent on membership" which were initially proposed by the Government for the 1972 constitutional amendment and altered because of fears that such a wording would be too wide.
If we become members of the European union, we must be able to undertake the obligations therein. Otherwise the country will be blocked from effective participation in the union. Thus, contrary to some misconceived comments, it is necessary for ratification that the constitutional amendment should refer to the European Union as well as to the Communities and that it should specifically authorise the State to become a member of the union.
The mode of action in the Titles of the Treaty relating to foreign security policy and to co-operation in justice and home affairs is intergovernmental. Except for certain specific cases, the Titles in these matters do not form part of the Community law or create Community rights or obligations which would be subject to review by the European Court of Justice. Action in these areas is by unanimity. Where there is provision for majority voting this operates only at the implementation stage and if agreed on unanimously by the member states.
Where matters requiring Community action arise, there are provisions whereby they will, or may, be taken under the Community Treaties. Thus, for example, where a question of sanctions arises pursuant to a common position or a joint action under the common foreign and security policy, they would be dealt with under Article 228 (A) of the European Community Treaty. Similarly under the justice and home affairs heading, policy on, say visas for crossing the external frontier of the Community is dealt with under Article 100 (C), of the European Community Treaty.
Actions under both these articles will be subject to the jurisdiction of the European Court of Justice. There is provision for the Council to decide by unanimity to apply Article 100 (C) to other matters under the justice and home affairs headings, in addition to visa policy, but any such matters so transferred would also come under review by the Court of Justice. Under Article K3 of the Treaty, the Council may draw up and recommend — although not require — the member states adopt conventions on the subjects mentioned in Article K1. These conventions may stipulate that the Court of Justice is to have jurisdiction to interpret them and to rule on any disputes regarding their application. However, apart from the areas mentioned, it is true that the Court of Justice will not have jurisdiction over the interpretation and application of the provisions of the European Union Treaty concerning the common defence and security policy and concerning co-operation in the fields of justice and home affairs.
The Government supported the exclusion of these matters from the jurisdiction of the Court of Justice. As in the Single European Act, where the foreign policy provisions are outside the scope of the European Court, the member states took the view that areas which are for intergovernmental co-operation would not be subject to the European Court of Justice. First, this was because action in these areas is undertaken by governments and involves areas at present judged too sensitive to be subject to Community treatment which would involve, for example, the sole right of initiative for the Commission in the legislative area. Second, the Court of Justice is responsible for the implementation of Community law and the rights and obligations which arise from Community law. The Titles on foreign policy and home affairs do not involve Community action.
It has also been suggested that, having regard to the objectives of the union stated in Article B of the Treaty and the terms of the Supreme Court judgment in the Crotty case, the proposed amendment would mean that any further action by the Government in the area, in particular of common foreign and security policy, would be outside the jurisdiction of the courts of this country. It has been suggested that the Government could enter into any further treaties as they saw fit under the heading of a common defence policy without any further referendum. This is not accepted.
In the Supreme Court judgment in the Crotty case, it was made clear that even within the scope of the objectives of the European Community Treaties as they stood when we first joined the Community, the Government did not have free liberty and licence to negotiate any Treaty amendments they wished.
There is the question of the content and significance of the amendments involved. It is clear that amendments to the Treaty to establish alliance-type commitments to empower the European Union to act for the member states in the defence area or to create a common European Union defence force would be matters of major significance.
Second, the interpretation of the extent of the liberty which would be given to the Government by the proposed constitutional amendment under the heading of foreign or security policy is a matter for our own courts, and the Government will be bound by any such interpretation. In the light of such considerations, the Taoiseach made it clear that amendments to the Treaty of the kind I have described would, in our case, involve another constitutional referendum.
Perhaps the most important point to be emphasised on this whole subject is that the content of the future common foreign and security policy is to be negotiated by common consent and unanimous agreement between the member states. Thus the State cannot be compelled to agree or accept any particular form of common foreign and security policy which it does not consider to be in the national interest or which it considers to be unacceptable to the people of this country. This fact is given a specific legal emphasis in article J 4.4 of the Treaty which states that the common foreign and security policy of the Union is not to prejudice the specific character of the security and defence policy of certain member states. This is a reference to the policy in this area of countries such as Ireland and it is a specific recognition of our position outside military alliance which is different from that of some of the other member states.
As the Taoiseach indicated yesterday, the common foreign and security policy does not involve joint action by the European Union in the military area. It will not oblige Ireland to join a military alliance. It does not set up a common defence policy or European army. What it does is to provide for another Intergovernmental conference to allow for further discussions and negotiations on a common defence policy in 1996. The outcome of that conference would have to be agreed unanimously, and any Treaty changes would have to be ratified by member states.
I have tried to cover everything that has been said. Senator Norris mentioned the Crotty judgment, it is not accepted that the effect of the proposed amendment — either a new subsection (4) or the first part of a new subsection (5) — would be as wide as is suggested. The Supreme Court clearly held in the Crotty case that the licence conferred by membership of the Communities pursuant to the existing Article 29.4.3 was limited. The nature and extent of the limitations in question are indicated in the judgment. The primary limitation is that amendments must stay within the original scope and objectives of the Treaties. It is clear, however, that this is not the only limitation. On page 770 of the 1987Irish Law Reports the Chief Justice, delivering the judgment of the court on Title (ii) of the Single European Act stated:
As far as Ireland is concerned, it does not follow that all other decisions of the Council which now require unanimity could, without further amendment of the constitution, be changed to decisions requiring less then unanimity.
In other words, even within the existing scope and objectives of the Treaties, certain changes from unanimity to something less than unanimity in the Council might have been regarded by the Supreme Court as so fundamental to sovereignty as to require a constitutional amendment. In fact, it is clear from the judgment that future Treaty amendments involving significant concessions of sovereignty or containing threats to fundamental constitutional rights were regarded by the Supreme Court in the Crotty case as not within the licence to agree to the future Treaty amendments contained in the 1972 amendment.
It must be remembered, however, that the interpretation of the amendments proposed in the forthcoming referendum would be a matter for the Irish courts, not for the Irish Government. Any Irish Government, which assumed that, on the basis of the present amendment, they could undertake a defence policy or a common defence which undermined the sovereignty of the State in these areas without a further referendum would be rash indeed.
I am not necessarily agreeing with the Minister, but I would like to thank him for an impeccably thorough response. It is the best response I have heard on the issue since this argument was raised. I am not trying to start a row between him and the Taoiseach, but the Minister's response was much better than the circular reasoning the Taoiseach indulged in yesterday when we began this debate.
I do not want to delay the House, therefore, I am not inclined to push the amendment to a vote for these reasons. First, because I do not have a copy of the Minister's statement and I am not used to replies of up to 14 pages long to an amendment, second, because the amendment would not be carried, and, third, because there are a number of other amendments, among them one from Fine Gael, on the right to travel which I believe deserved detailed consideration. I would also like to amend the Bill to stop this Government and future Governments using taxpayers' money to influence taxpayers on how they should vote in a referendum by issuing propaganda and calling them information. Unfortunately, because of the censorship of this House, as imposed on itself, I will not be able to do this. In order to speed up the business of the House, I withdraw the amendment with some reservations.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Alt 1 aontaithe.
Section 1 agreed to.
Alt 2 aontaithe.
Section 2 agreed to.
AN SCEIDEAL.
SCHEDULE.
Tairigím leasú Uimh. 2:
I gCuid I, leathanach 7, idir na linte 2 agus 3, an méid seo a leanas a chur isteach:
"4 Tig leis an Stát an Coinbhinsiún Eorpach um Chearta an Duine agus Saoirsí Bunúsacha, agus Prótacail leis, a dhaingniú agus glacfaidh sé bearta chun déanamh de réir an Choinbhinsiúin, agus déanfaidh sé go sonrach de réir aon bhreithiúnais ón gCúirt Eorpach um Chearta an Duine laistigh de bhliain amháin ó dháta an bhreithiúnais.",
agus
I gCuid II, leathanach 7, idir na línte 17 agus 18, an méid seo a leanas a chur isteach:
"4 The State may ratify the European Convention on Human Rights and Fundamental Freedoms, and the Protocols thereto, and shall adopt measures to comply with the Convention and shall in particular comply with any Judgment of the European Court of Human Rigths within one year from the date of judgment."
I move amendment No. 2:
In Part I, page 6, between lines 2 and 3, to insert the following:
"4 Tig leis an Stát an Coinbhinsiún Eorpach um Chearta an Duine agus Saoirsí Bunúsacha, agus Prótacail leis, a dhaingniú agus glacfaidh sé bearta chun déanamh de réir an Choinbhinsiúin, agus déanfaidh sé go sonrach de réir aon bhreithiúnais ón gCúirt Eorpach um Chearta an Duine laistigh de bhliain amháin ó dháta an bhreithiúnais.",
and
In Part II, page 6, between lines 17 and 18, to insert the following:
"4 The State may ratify the European Convention on Human Rights and Fundamental Freedoms, and the Protocols thereto, and shall adopt measures to comply with the Convention and shall in particular comply with any Judgment of the European Court of Human Rights within one year from the date of judgment."
As I understand it, there were four judgments of the European Court which were adverse to the position taken by the Irish Governments. Some of these judgments have been fairly spectacular, notably, the one we are most familar with in this House, the Norris case. The implications of that judgment and, indeed, what it means for the country have been put on the long finger by the Government for some time. Essentially, this amendment seeks to place an obligation on the Government to comply with judgments of the European Court of Human Rights within a year of the date of that judgment. That is a reasonable and sensible proposition and I hope the Minister will accede to the amendment. We must face up to the essential question involved here namely, are we, or are we not, prepared to accept the decisions of the European Court of Human Rights? If we are not prepared to accept them, but put those decisions and their implications on the long finger, we might as well be honest and say that
I second the amendment. This is a fundamental amendment. This Treaty will extend European citizenship to the citizens of each state and we want to ensure that that extension is based on fundamental rights and freedoms, that is, the European Convention on Human Rights and fundamental freedoms, and that that be the pillar of European citizenship. Too often in the past we have paid only lip service to the European Court on Human Rights and to the implementation of its decisions. Three or four cases come to mind.
It took a long time for the Government to implement the decisions of the European Court with regard to free legal aid. It took the Government a long time to implement elements of the equal pay case. There is the case against Britain that we took to the European Court of Human Rights in relation to torture in Northern Ireland. That was a slow process but quicker than some of the others. There is also the case we have here, which Senator Norris brings up regularly in relation to the decriminalisation of homosexuality in this jurisdiction. Nothing has been done over the past four years. We are asking for a statement of our commitment to the European Court of Human Rights and the fundamental freedoms therein as the basic pillar of what we are seeking to do, introduced by our membership of the European Union. We also want to put in place the mechanism to ensure that the findings of that court are implemented without delay. This is extremely important.
It also has very strong implications in relation to the right to travel and the right to freedom of information and from that point of view it is of considerable importance. I would add to that, Article 8A of the Treaty which makes considerable reference to the right to travel. In conjunction with that and what is stated here, we would have a fine basis for European citizenship in the future.
I welcome the intervention of the Labour Party in placing this amendment on the Order Paper this afternoon. I have some personal interest in this. It would be appropriate, if we are serious about human rights in the European dimension, to accept this amendment. I noted, with some amusement, in the little document which is supported to be document of explanation, although my colleague, Senator Ryan would call it a propaganda instrument, that the Government made great play of their respect for the European Court of Justice and suggest that this should be strengthened and that there should be penalties for non-compliance. Here the Labour Party are asking for precisely that, with regard to the European Court of Human Rights.
Since I spoke this morning, I have had some news from Strasbourg, that our representative there has indicated to the Committee of Ministers that it is the intention of the Government to alter the law during the course of this year. I heard that last year and the year before, and my good friend and colleague, Dr. Noel Browne in Dáil Éireann, got a fairly similar reply in 1977. Only yesterday, the Taoiseach in a briefing for a political correspondents said that it was not a matter of priority. I can understand that there are other social issues which are very important and, if I may say without undue levity, I am sick and tired of this subject. I am bored to death with buggery.
How do you think we feel?
I wish we could at least address this subject in a clear, simple and concise manner and let us get on with other issues. I agree with the Labour Party. If we are to have respect for human rights, let us give some credence to it by accepting the notion of mandatory compliance with the judgments of the European Court of Human Rights.
There has been a campaign to get the Irish people to support the Maastricht Treaty. The response has been fantastic. The farming organisations and the trade union movement have come out very strongly indeed in support of it. In some of the literature that has been issued, there is talk about improving quality of life and making us citizens of Europe with all sorts of rights. It is hardly unreasonable to ask the Government to accept this amendment and see to it that judgments by the European Court of Human Rights do not drag out for years and years but are given effect to within 12 months. There should be a quid pro quo. If the people are to accept what is being said, that the quality of life will be good, that they are going to be European citizens, with more rights and more freedom of movement, the Government must accept what we are saying.
I have sympathy with this amendment. I do not know how many questions it is possible to put in any one referendum. There are quite a number of conventions that have been agreed over the years and it takes a long while for the Government to eventually ratify them. I do not know why there should be such inordinate delay. Perhaps the Government should give us an opportunity to review the five or six conventions that have been agreed but not signed. These deal with a wide range of international subjects. Perhaps the Minister might be able to take an early opportunity to review then.
I assumed, since Senator Norris spectacularly asserted his right to go to the Court of Human Rights, that we had ratified the Convention. I cannot understand how he could have fought for rights under the European Convention on Human Rights if we had not ratified it. I fully agree with the principle of the amendment. It makes a mockery of all ideas of judicial and individual rights through any court procedure if the person who is at the receiving end of a judgment can ignore that judgment for a period of nearly four years. There are two separate issues, one being ratification. The other is the very important insistence, which should not have to be written down if this Government were prepared to operate like any normal Government under the law, that 12 months should be the maximum period of time which a Government have in order to derogate from the Convention on Human Rights, or implement the decision. I support the spirit of this amendment. I have my doubts as to whether we can talk about a constitutional amendment to ratify something that has been ratified for 20 years.
I sympathise with and appreciate the points that have been made by Senator Upton. I would be only too happy to accept an amendment like this, if we could facilitate it here but I am not certain this is the way we can deal with this. I also appreciate the points that have been made by Senator Norris.
The case raised earlier is really a matter for legislation. Indications of action in that area have been given. The position is that in 1953 Ireland ratified and became a party to the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms. We are bound by the provisions of the convention and both the Irish Government and Irish citizens have used the mechanisms of the convention on a number of occasions. If we were to accept this amendment we would unilaterally undertake an obligation not required by the convention and which no other party to the convention has undertaken. It is for another day and another occasion.
Is there a reason why we should not take the initiative?
We are already trying to disentangle two issues which we would wish to see debated separately. We have had quite a lot of discussion about this. To introduce another one now would further confuse the issue. We must oppose this amendment.
I apologise to the Minister for having to leave the House, but I was called away for an urgent telephone call. I mentioned to Senators Costello and Ryan the fact that, as I understood it, we were already signatories to the European Convention on Human Rights. Not only are we an early ratifier of this Treaty, but the late Seán MacBride, with whom I disagreed on a number of issues, was one of the principal architects of the European Convention on Human Rights. There was a very strong Irish input into that noble area of human rights legislation.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Níor tairgeadh leasú Uimh. 3.
Amendment No. 3 not moved.
Tairgim leasú Uimh. 4:
I gCuid I, leathanach 7, idir na línte 5 agus 6, an méid seo a leanas a chur isteach:
"5 I gcás go ceanglaítear ar an Stát bearta dlíthiúla a ghlacadh chun oibleagáidí comhaltais san Aontas Eorpach nó sna Comhphobail a chur i bhfeidhm is cóir a mhéid is féidir i gcás bearta den sórt sin, má bhaineann siad le leasú reachtaíochta, gur i bhfoirm Achtanna den Oireachtas a ghlacfaí leis na bearta sin.",
agus
I gCuid II, leathanach 7, idir na línte 20 agus 21, an méid seo a leanas a chur isteach:
"5 Where legal measures are required to be taken by the State to implement obligations of membership of the European Union or the Communities, such measures, if they involve the amendment of legislation, shall as far as practicable be taken in the form of Acts of the Oireachtas."
I move amendment No. 4:
In Part I, page 6, between lines 5 and 6, to insert the following:
"5 I gcás go ceanglaítear ar an Stát bearta dlíthiúla a ghlacadh chun oibleagáidí comhaltais san Aontas Eorpach nó sna Comhphobail a chur i bhfeidhm is cóir a mhéid is féidir i gcás bearta den sórt sin, má bhaineann siad le leasú reachtaíochta, gur i bhfoirm Achtanna den Oireachtas a ghlacfaí leis na bearta sin.",
and
In Part II, page 6, between lines 20 and 21 to insert the following:
"5 Where legal measures are required to be taken by the State to implement obligations of membership of the European Union or the Communities, such measures, if they involve the amendment of legislation, shall as far as practicable be taken in the form of Acts of the Oireachtas."
This amendment seeks to ensure that the two Houses of the Oireachtas will have an opportunity to debate important matters which work their way into Irish law through EC Directives, and that we will also have the opportunity to modify those directives as far as possible. In other words, we should be able to move a step or two beyond the provision of the directives, or to definitely accept one or other of a series of options which are allowed for in various directives. It seems to be quite unacceptable that EC Directives are effectively rubber stamped into Irish law without the Oireachtas having very much to say or do about them, or being able to modify them to the extent that it is possible to modify them under the present set up.
I second this amendment. The amendment is particularly important when we look at the provision that has been added to Part II, paragraph 5 which we already discussed in the context of the first amendment, namely, that no provision of the Constitution invalidates laws and Acts necessitated by the obligations of membership, and that we do not find that our obligations of membership are limited strictly to what emanates from Europe as distinct from each member state having the opportunity of discussing in their Parliaments with the opportunity to tease out and to amend and improve what might be required, in terms of measures to implement our obligations in this area. That is part of the democratic process. Another great buzz word heard when discussing the Treaty is the "democratic deficit". We can improve on that by ensuring that we have the opportunity to discuss, debate, amend and, perhaps, go a step further than was originally intended, but we certainly should not automatically rubber stamp what has already been decided.
I deduce from that, that Senator Upton is concerned about the number of transportations into Irish legislation we will have by way of Statutory Instruments——
Mr. Ryan
By way of circular.
——which do not necessarily have the benefit of Oireachtas scrutiny. We cannot accept the amendment. Where it is practicable and appropriate, the Government have transposed measures necessitated by membership of the Community by Acts of the Oireachtas and this will continue to be the practice. The Oireachtas Joint Committee on Secondary Legislation of the European Communities have long played a role in monitoring EC legislation. I was a member of that Oireachtas Joint Committee for quite a number of years. We discussed the SEA many years before the measure was taken to the stage where we had a referendum on it. Members will be aware that there was discussion here recently on the establishment of a new Foreign Affairs Committee of the Houses of the Oireachtas, which would enable these issues to be discussed. This issue is at present under discussion between the Whips. The new committee will give us a platform from which to look at these areas to see where we can make progress. This amendment is not necessary and I oppose it.
Tarraingíodh siar an leasú faoi chead.
Amendment, by leave, withdrawn.
Tairgim leasú Uimh. 5:
I gCuid I, leathanach 7, idir na línte 13 agus 14, an méid seo a leanas a chur isteach:
"6. Ní cead aon fhoráil den Bhunreacht seo a agairt chun toirmeasc nó bac a chur le feidhmiú a chirt taisteal chun an Stáit nó ón Stát le haghaidh seirbhísí atá le fáil go dleathach i ndlínsí eile a fháil nó comhairliú agus faisnéis, a bhaineann leis na seirbhísí sin a fháil laistigh den Stát, ach sin faoi chuimsiú cibé srianta a shocrófar le dlí."
agus
I gCuid II, leathanach 7, idir na línte 28 agus 29, an méid seo a leanas a chur isteach:
"6. No provision of this Constitution shall be invoked to prohibit or interfere with the exercise of the right to travel to or from the State for the purpose of receiving services lawfully available in other jurisdictions or to obtain, within the State, counselling and information relating to such services subject to such restrictions as may be provided by law."
I move amendment No. 5:
5. In Part I, page 6, between lines 13 and 14, to insert the following:
"6. Ní cead aon fhoráil den Bhunreacht seo a agairt chun toirmeasc nó bac a chur le feidhmiú a chirt taisteal chun an Stáit nó ón Stát le haghaidh seirbhísí atá ar fáil go dleathach i ndlínsí eile a fháil nó comhairliú agus faisnéis, a bhaineann leis na seirbhísí sin, a fháil laistigh den Stát, ach sin faoi chuimsiú cibé srianta a shocrófar le dlí."
and
In Part II, page 6, between lines 28 and 29, to insert the following:
"6. No provision of this Constitution shall be invoked to prohibit or interfere with the exercise of the right to travel to or from the State for the purpose of receiving services lawfully available in other jurisdictions or to obtain, within the State, counselling and information relating to such services subject to such restrictions as may be provided by law."
There has been a lot of debate on the issues and I would urge the Minister to seriously consider allowing the issues in the amendment to be dealt with prior to 18 June.
In relation to the wording of the amendment in particular, we would like confirmation from the Minister of the Government's position on travel and information in this country and those that will be available in other jurisdictions. I will await the Ministers response as many of my colleagues would like to speak on this issue.
The Minister is probably aware that when it comes to emotions being confused and concerns being expressed generally in relation to the Maastricht Treaty, the problems dealt with in this amendment are those that come immediately to the fore but there are many others. However these are two of perhaps four very contentious areas that the Protocol and the Supreme Court judgment brought to light that will have to be dealt with. I urge the Minister to accept the amendment.
I second Senator Doyle's amendment. We have waited several months to get wording from the Taoiseach on travel and information. What I would like today is clarification of the right to information. There is considerable confusion abroad about counselling and information — counselling is not illegal but is perceived by many women to be illegal because it is linked with information. The right to travel does not appear to pose any problem for the Government. The right to counselling is not a problem. I cannot understand why we have not had a form of wording before now in relation to information. It seems that the Taoiseach may have a hidden agenda; he may be waiting for a ruling from the European Court of Human Rights on the case before them — which was not taken in the case of the 14 year old girl. Perhaps the Taoiseach feels that by November that judgment will have been given, which will mean that through European law we will have the right to information. If this is so, I cannot understand why we cannot have the wording now, because it is the understanding of 51 per cent of the population that a Protocol was inserted at the instigation of a few men, and that men and women do not have equal rights to travel and information. Many women feel they should not even have to vote on an amendment giving them the right to travel when men do not. They are asking if the right to travel applies only to women. If it is — and obviously in the nature of the Protocol it is — there are two sins being committed here. One is that women are being relegated as second class citizens. It does not matter what is agreed in Europe, this is how our national Government sees us in relation to the Protocol, this continual lack of commmitment to giving us a form of wording. This is causing confusion. Why can we not have a form of wording, as only one issue is involved, the issue of information? If we wish to continue the nod and wink, the cloak and dagger attitude to moral issues here, let us ignore counselling, let us ignore the problem of thousands of young people in crisis pregnancies who cannot get access to counselling because this issue is so confused. It is a very thorny issue and on 18 June, if this issue is not resolved, we will find that quite a number of Irish women are not going to the polls because of their fury at the way in which they are being treated. In seconding this amendment I hope it will be accepted.
I thought, with the discussion we had on Maastricht during the past two days, where there was consensus and party politics were not being played, that we were all quite clear in our minds that we had separated Maastricht from the travel and information issue. There is a commitment given for a referendum on that at the end of this year. Senators tried in the past two days to be clear in their own minds and, therefore, made it clear to the people we are asking vote "yes" that this is separate and absolutely a different issue from the vote on June 18.
There is much confusion and, while the Taoiseach says that there is absolutely no question of abortion in the Maastricht agreement, the Irish Protocol deals precisely with that so we cannot blame people for their views. We heard Senator Hanafin yesterday on it. All we are seeking in this amendment is a reassurance for the population, especially the women of Ireland, that they will not be treated differently to any other member of the population.
I cannot understand the logic of putting down this amendment at this stage. I oppose it because to take this amendment now would mean the Maastricht Treaty would have to be postponed. That is the logic of the situation.
No.
I am sure it is, because the Dáil has already dealt with this matter and this House is dealing with this Bill today. If we were, at this stage, to accept this amendment, it would mean that the referendum on Maastricht would have to be postponed. We have already been told by the Taoiseach in this House yesterday morning that the matter of travel and information and the substantive issue of abortion will be dealt with in November. I do not know why the Members of the Fine Gael Party have put down this amendment other than to link again the area of information and travel with the Maastricht Treaty when most people have to a great extent disentangled the two issues. I certainly oppose this amendment. It is a further attempt to bring the two issues together again, to confuse the people and to confuse this House.
Was it not agreed the Minister would reply to the debate at 3.45 p.m.? On a point of information, could I be informed as to what is happening?
An Leas-Chathaoirleach
There is no such thing as a point of information. Will the Senator please resume his seat.
I have mixed views about this amendment, not because I do not agree with it but because essentially all of those who agree with it, with the exception of a few of us, saying that they will trust a Fianna Fáil Government to deal with the issue next November. This is notwithstanding the fact that the Maastricht Treaty enshrines the Protocol as it stands and enshrines Article 40.3.3 of the Constitution as interpreted by the Supreme Court, which turns this country into an internment camp for pregnant women and will continue to do so until the referendum next November.
May I remind the House that last December twelve months, we were promised by a Fianna Fáil Minister that we would have legislation to deal with Senator Norris' case in the following year and that was when they were obliged under the European Convention on Human Rights to legislate and they did not get around to introducing legislation. I would be very wary of this promise next October or November when the pressure and the heat is off, and the Fianna Fáil Parliamentary Party get very nervous about abortion. I am warning my colleagues on this side of the House that the issue raised by the Supreme Court on the issue of abortion are not nearly solved, and we are nowhere near a political resolution of the matter. This amendment, while it would solve the problem, is not going to solve it now. It will not go through, and I am telling them now, that giving Fianna Fáil a blank cheque on this issue is one of the biggest risks they have ever taken.
It goes without saying that we are in favour of this amendment. It is very much in accord with the Bill which our party debated in the other House. I share Senator Ryan's concern about what will happen in November. I have a dreadful suspicion that in November we might get down to replacing the referendum with a general election. I have a very strong suspicion that at that time a general election could be more appetising for the Government and Taoiseach ——
Are you ready?
Indeed I am, and I am looking forward to it. I have been reading the opinion polls with great delight in recent times.
An Leas-Chathaoirleach
Order, please.
Another Dáil seat.
Is that an indication that an election is to take place in the autumn?
We have the Protocol in relation to the amendment of the Constitution. The Eighth Amendment of the Constitution is in place, and while that remains injunctions can again be taken out, whereby women are certainly second-class citizens and where effectively what we discussed in the last amendment, namely the fundamental rights and freedoms of the European Court of Human Rights and the European Convention on Human Rights, are not available equally to all citizens. That is why this amendment is so important. The order we talked about, where this amendment would come first, and where it was in the context of the Labour Party Bill, was agreed by the Progressive Democrats not so long ago. However, they have changed that and have gone along with the Government, even though they share quite considerable reservations about the will of the Government to deliver on this commitment in relation to confirming the right to travel and to information. It is simply not right for us to put this Treaty in place without ensuring all of the citizens are treated equally under Article 8A of the Treaty. This amendment can be introduced without postponing the referendum, if we take it in the context of a fundamental right, and that therefore, it is referring to the fundamental rights of the citizens of all of Europe in terms of our common citizenship under the new Treaty.
I am astonished by some of the statements made by the Opposition. I want to place on the record that I have complete faith in a Fianna Fáil Government.
That is a surprise.
They have no difficulty with travel which is a basic right enshrined in the Treaty. They will have no difficulty in providing information and they will have no difficulty with banning abortion.
They will have no difficulty with this amendment, then.
An Leas-Chathaoirleach
I am sorry to interrupt the Senator. As it is now 4 o'clock, in accordance with the Order of Business, I must put the question.
Can we put our amendment?
An Leas-Chathaoirleach
No.
I would like to put the amendment. It involves a most important issue.
An Leas-Chathaoirleach
It is now 4 o'clock and in accordance with the Order of Business I must put the question.
Cuireadh an cheist: "Go n-aontaítear leis seo an Bille um an Aonú Leasú Déag ar an mBunreacht, 1992, i gCoiste, agus go dtuairiscítear an Bille don Teach gan leasú, agus go ndéantar an Bille leis seo a chríochnú, agus go ndéantar an Bille leis seo a rith."
The question is: "That the Eleventh Amendment of the Constitution Bill, 1992, is hereby agreed to in Committee and is reported to the House without amendment and the Fourth Stage is hereby completed and the Bill is hereby passed."
I have moved the amendment.
(Interruptions.)
Question put.
Senators
Vótáil.
An Leas-Chathaoirleach
Will the Senators who are claiming a division please stand?
Five or more Senators stood.
An Leas-Chathaoirleach
The division will proceed.
The Seanad divided: Tá, 31; Níl, 12.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Costello, Joe.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Harte, John.
- Haughey, Seán F.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McKenna, Tony.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ormonde, Donal.
- Ryan, Eoin David.
- Ryan, John.
- Upton, Pat.
- Wright, G.V.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Hourigan, Richard V.
- Jackman, Mary.
- McDonald, Charlie.
- Murphy, John A.
- Neville, Daniel.
- Norris, David.
- O'Reilly, Joe.
- Ross, Shane P.N.
- Ryan, Brendan.
- Staunton, Myles.
Tellers: Tá, Senators E. Ryan and Fitzgerald; Níl, Senators B. Ryan and Norris.
Question declared carried.
Fáisnéiseadh go rabhthas tar éis diúltú leis an gceist.
On a point of information——
An Leas-Chathaoirleach
There is no such thing as a point of information.
May I point out that Fine Gael were led by the nose by Senator Doyle who voted against this Bill.
An Leas-Chathaoirleach
Item No.2.
This is a nice one going into the Fine Gael Árd Fheis.
(Interruptions.)
We will not be bullied by the likes of you.
An Leas-Chathaoirleach
Order, please.
There are a few of us here who can be counted on to look after the interests of the women of Ireland. We will not be bullied by anyone in the Seanad or anywhere else.
(Interruptions.)
An Leas-Chathaoirleach
Order, please. I am amazed at the behaviour of Members. Could I have the co-operation of the House so that we can conclude business?