Council of State meets to discuss constitutionality of Defence Bill

By Cate McCurry, PA

The advisory body of President Michael D Higgins has met to discuss the constitutionality of legislation contained in the Government’s Defence Bill.

The meeting of the Council of State took place in Áras an Uachtaráin to examine legislation to regulate Defence Forces’ representative associations.

The Council discussed whether the Defence (Amendment) Bill 2024 should be referred by the President to the Supreme Court, on whether specific provisions are “repugnant to the constitution”.

Mr Higgins will consider the issues put forward by the Council and will make the final decision on whether the sections should be referred to the Supreme Court.

He is expected to make the decision by Wednesday.

President Higgins has convened a meeting of the Council of State, to be held on Monday 15 July 2024 at 2.30pm, for the purpose of his hearing from the Council regarding the constitutionality of the Defence (Amendment) Bill 2024. https://t.co/ruPZIzYJet

— President of Ireland (@PresidentIRL) July 12, 2024

Mr Higgins has asked the council about sections 11 and 24 of the Bill in particular, and whether the interference with constitutional rights is disproportionate.

Section 11 prohibits a member of the Permanent Defence Forces from making a public statement or comment in relation to political matters or Government policy while they are in uniform, or otherwise identifiable as a member of the Defence Forces, without prior authorisation from their commanding officer.

It would also prohibit them from attending a protest under the same circumstances and stop them from canvassing for a political organisation or addressing a meeting of such a society.

While Section 24 would now allow the Defence Forces to associate with the Irish Congress of Trade Unions, it would prohibit associated bodies like ICTU from calling for or encouraging industrial action within the military.

Those who sit on the Council include former taoiseachs Leo Varadkar, Bertie Ahern and Enda Kenny and Taoiseach Simon Harris.

Former chief justices Susan Denham and Frank Clarke also attended, and former presidents Mary McAleese and Mary Robinson.

Attorney General Rossa Fanning, activist Sinead Burke as well as Senator Jerry Buttimer.

PDFORRA (Permanent Defence Force Other Ranks Representative Association), the representative body for enlisted personnel serving in the Defence Forces, welcomed the meeting.

The organisation has raised concerns that rights of members would be “eroded” and expressed a willingness to mount a legal challenge to the legislation.

It will be the fourth time that Mr Higgins has convened the Council of State to consider a piece of legislation, over the course of his terms in office.

He convened the Council of State on July 29th, 2013 to consider the Protection of Life During Pregnancy Bill 2013, on December 29th 2015 to consider the International Protection Bill 2015, and on October 11th, 2023 to consider the Judicial Appointments Commission Bill 2022.

Since 1940, the Council of State has been convened to consider the potential referral of 29 Bills to the Supreme Court.

Fifteen Bills have been referred to the Supreme Court after such meetings.