Twenty-two members of the Council of State attended Áras an Uachtaráin on Monday after President Michael D Higgins convened a meeting of the advisory body to hear views on whether or not he should refer the Defence (Amendment) Bill to the Supreme Court.
The meeting of the Council of State was attended by Mr Higgins; Taoiseach Simon Harris; Chief Justice Donal O’Donnell; President of the Court of Appeal Mr Justice George Birmingham; and President of the High Court Mr Justice David Barniville. Others present included Cathaoirleach of the Seanad Senator Jerry Buttimer; Attorney General Rossa Fanning, former presidents Mary Robinson and Mary McAleese; former taoisigh Bertie Ahern, Enda Kenny and Leo Varadkar; former chief justices Ronan Keane, Susan Denham and Frank Clarke; Dr Cara Augustenborg, Sinéad Burke, Dr Sindy Joyce, Maurice Malone, Dr Johnston McMaster, Dr Mary Murphy and Seán Ó Cuirreáin.
Apologies were received from Tánaiste Mícheál Martin, Ceann Comhairle Seán Ó Fearghaíl and former taoiseach Brian Cowen. The meeting began just before 3pm and finished a little after 5.30pm.
Under Article 26 the President has a specific power to refer Bills to the highest court to ask it to determine if a Bill (or its provisions) are in keeping with, or repugnant to, the Constitution.
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It was only the fourth time the President had convened a meeting to discuss a Bill during his 13 years in office. Previously the council considered the Life During Pregnancy Bill 2013 and the International protection Bill 2015, as well as the Judicial Appointments Bill in November 2023. None has been referred to the Supreme Court.
The Defence (Amendment) Bill 2024 will allow groups representing enlisted and commissioned personnel in the Defence Forces to associate for the first time with the Irish Congress of Trade Unions on industrial relations matters.
It also provides for an External Oversight Body for the Defence Forces, which is designed to drive cultural change in the military and increase transparency and accountability. The part that is thought to have raised a question in relation to its constitutionality was a provision contained in sections 11 and 24 of the Bill, which specifically bans Defence Forces members from commenting on a political matter “or matter of Government policy”.
The format of Council of State meetings in the past has been that the President opens the meeting with a short address setting out the Bill and its provisions. The council does not vote or make any decisions but there is a “tour de table” during which members make their views known to the President.
Following the meeting, it is the President who makes the decision on referring the Bill to the Supreme Court to test its constitutionality. If it is found constitutional, once enacted, the law cannot be challenged in terms of its constitutionality.
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