President Michael D Higgins has convened a meeting of the Council of State to consider whether a new Bill relating to the Defence Forces should be referred to the Supreme Court to test its constitutionality.
The council is to meet on Monday to examine the Defence (Amendment) Bill 2024, which has passed all stages of the Oireachtas and was referred to Mr Higgins for his consideration.
Under Article 26 of the Constitution, the President may refer a Bill to the Supreme Court for a decision as to whether it, or any specified provisions, are unconstitutional. This is only the fourth time that Mr Higgins has convened the council to consider a piece of legislation during his time in office.
He previously convened it in 2013 to consider the Protection of Life During Pregnancy Bill 2013; in 2015 to consider the International Protection Bill 2015; and last year to consider the Judicial Appointments Commission Bill 2022.
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One of the provisions of the Defence (Amendment) Bill 2024 would give effect to the Government’s decision to allow the military representative groups to associate with the Irish Congress of Trade Unions (Ictu) and engage in some limited trade union-type activity.
The Irish Times previously reported that military representatives have raised concerns about the legislation fearing provisions in the Bill would prevent them criticising government policy regarding recruitment and retention with the Defence Forces.
A statement from Áras an Uachtaráin said Mr Higgins “intends to consult the Council of State in particular on Sections 11 and 24 of the Bill and whether the interference with constitutional rights is disproportionate”.
Section 11 sets out restrictions on members of the Defence Forces making political comment, attending protests or participating in political activities such as canvassing. Section 24 sets out how Defence Forces association shall be independent of and not associated with any trade union or any other body outside the organisation.
However, it includes a provision that the minister may authorise in writing an association with a trade union or any other body outside of the Defence Forces subject to “conditions or restrictions as he or she may specify”.
In May, Tánaiste and Minister for Defence Micheál Martin addressed Defence Forces members representative body PDForra’s annual conference and outlined how the Government had engaged with it and another association, Raco, on their long-standing request to seek associate membership with Ictu.
He said he was clear when taking the Bill though the Dáil that one purpose of the legislation is to facilitate the relationship between the representative bodies and Ictu and he said he was committed to that.
Mr Martin said: “I understand that PDForra continue to have certain concerns in relation to language in the Bill around the conditions attached to Ictu association” and he hoped assurances he provided had dealt with the concerns.
He also said “there is simply no questions of restricting the association’s right and capacity to advocate on behalf of its members’ interests”.
The Council of State’s membership includes the Taoiseach, Tánaiste, Chief Justice, the presidents of the Court of Appeal and the High Court, the Ceann Comhairle, the Cathaoirleach of the Seanad and the Attorney General. Other members include previous presidents, taoisigh and chief justices.
The members of the council who were appointed by the President are environmental scientist Dr Cara Augustenborg; writer and disability activist Sinéad Burke; Irish Traveller human rights activist and sociologist Dr Sindy Joyce; chief executive of the Birmingham Irish Association Maurice Malone; Methodist minister and assistant professor at Trinity College Dublin, Johnston McMaster; senior lecturer at Maynooth University, Mary Murphy; and former journalist and Irish Language Commissioner Seán Ó Cuirreáin.
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