LAST UPDATE | 15 Jul
A MEETING OF the Council of State has ended this evening at Áras an Uachtaráin.
President Michael D Higgins had called the meeting to consider the constitutionality of the Defence (Amendment) Bill 2024, which could preclude the Defence Forces from publicly questioning or commenting on government defence policy.
Higgins will now consider the views of the members of the Council before making a decision as to whether to sign the Bill or to refer it to the Supreme Court for a decision.
President Higgins this afternoon convened a meeting of the Council of State at Áras an Uachtaráin for the purpose of his hearing from the Council regarding the constitutionality of the Defence (Amendment) Bill 2024. pic.twitter.com/Svoy64034k
— President of Ireland (@PresidentIRL) July 15, 2024
PDFORRA, which represents rank and file members across the Irish Air Corps, the Naval Service and Army along with the Representative Association of Commissioned Officers (RACO) have previously denounced the Bill.
In February, RACO told the Joint Oireachtas Committee on Foreign Affairs and Defence that it believes the amendment is “draconian”.
The representative bodies have taken issue with the makeup of the External Oversight Body as its membership includes the Secretary General of the Department of Defence.
At the meeting in Áras an Uachtaráin, President Michael D Higgins is asking the Council to consider:
Whether the Defence (Amendment) Bill 2024 should be referred by the President to the Supreme Court for a decision on the question as to whether the Bill or any specified provision or provisions thereof are repugnant to the Constitution or to any provision thereof.
The particular line in the Amendment, that the representative bodies have taken issue with, was highlighted by RACO in February and Higgins is expected to make the decision by Wednesday.
It states that members of the Defence Forces “shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy”.
PDFORRA told the Oireachtas earlier this year that the organisation and its members have “always accepted the need for political impartiality; however, this provision limits the ability of members to speak or give an opinion to any political organisation, society or grouping”.
The representative body highlighted how, under the proposals, members of the Defence Forces could face military charges for speaking out when dissatisfied with the nation’s health service or attending a public demonstration.
“Soldiers are citizens in uniform and should be vested with the rights and entitlement of normal citizens while not in uniform,” they argued.
Speaking on RTÉ’s Morning Ireland programme, Minister of State for Defence Jennifer Carroll MacNeill said the Bill will enable RACO and PDFORRA to join the Irish Congress of Trade Unions (ICTU) as associate members.
“That’s a big step forward that recognises the representative groups and gives them a larger, weightier voice in different ways,” she said.
“But what we’re still doing is maintaining the existing, blanket apolitical nature of the Defence Forces and making it very clear that that should persist and that that’s a really important part of our Defence Forces.”
She said the Government is trying to enhance circumstances where terms and conditions can be improved.
“What we’re trying to say though, is that a member of Defence Forces in uniform cannot participate in a protest. But if you’re not in uniform, of course, you can.”
Asked what would happen if a soldier were to speak out against pay and conditions, Carroll MacNeill said “it’s not appropriate that they do that” but that they would not lose their job.
“We have structures for the representative groups to be engaged in the whole conversation around terms and conditions, which we are actively enhancing.
“We are also enabling them to become associate memberships of trade unions, which is for the first time a step forward and an enhancement of that platform and of that ability,” she said.
She said the Government is also increasing pay for new members of the Defence Forces and improving health benefits and upgrading facilities at naval bases.
“We are doing all of this to make the Defense Forces a more attractive place to be. But it is also important that the Defence Forces, like the judiciary, remain broadly apolitical.”
The Journal covered this issue in July last year when Daniel Murphy, who is the designated Adjudicator under the Conciliation and Arbitration Scheme for the Defence Forces, accused the Department of Defence of operating “secret laws”.
The accusation was included in a Department report published last year. He further accused the Department for having a “silly and facetious approach” to membership of representative bodies by military personnel.
The Irish Constitution sets out that the Council of State is for the purposes of aiding and counselling the President. The President is required to consult with the Council in order to perform some of his duties.
The Constitution also sets out under what circumstances the President must consult with the Council. These include when he wishes to convene a meeting of either or both of the Houses of the Oireachtas – the Dáil and Seanad.
He must also consult with the council if he wants to communicate with the Dáil and Seanad by way of a message or address on “any matter of national or public importance” or if he wants to communicate with the nation.
The Council is also required if the President wishes to resolve a dispute between the Dáil and Seanad over a money bill or if he wishes to refer a bill to the people for a referendum.
These provisions are laid out in various articles of the Constitution.
Under Article 26 the Council must be convened if the President wishes to refer a piece of legislation to the Supreme Court to determine whether it is “repugnant to the Constitution” or unconstitutional in layman’s terms.
This is why the Council is being convened on this occasion.
The Council of State consists of three categories of members, which includes ex officio (those who are members by virtue of their office), former office holders and appointed members.
The Ex Officio members are:
The Taoiseach, Tánaiste, Chief Justice, President of the Court of Appeal, President of the High Court, Ceann Comhairle, Cathaoirleach of the Seanad and the Attorney General.
The former office holders are “every person, able and willing to act, who has previously held office as President, Taoiseach or Chief Justice”.
Apologies were received for today’s meeting from Tánaiste Mícheál Martin, Ceann Comhairle Seán Ó Fearghaíl and former Taoiseach Brian Cowen.
Meanwhile, the appointed members, in their roles since 2019, are:
- Includes reporting by Niall O’Connor and Ayush Pandey
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