In an advisory capacity, the Council of State saw 22 of its members congregate at Áras an Uachtaráin on Monday, following the request by President Michael D Higgins. The meeting was called to consider if he should put forward the Defense (Amendment) Bill to the Supreme Court.
In attendance at this gathering of the Council of State were President Higgins; the Taoiseach, Simon Harris; Chief Justice, Donal O’Donnell; President of the Court of Appeal, Mr Justice George Birmingham; and also the President of the High Court, Mr Justice David Barniville. Additional attendees included Seanad Cathaoirleach, Senator Jerry Buttimer; Attorney General, Rossa Fanning and previous presidents Mary Robinson and Mary McAleese; former taoisigh Bertie Ahern, Enda Kenny and Leo Varadkar; and past 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 were also present.
Absent participants, including former taoiseach Brian Cowen, Tánaiste Mícheál Martin, and Ceann Comhairle Seán Ó Fearghaíl sent their apologies. The meeting kicked off slightly before 3 in the afternoon, concluding just after half-past five.
Article 26 empowers the President to send bills to the Supreme Court, asking for it to rule on whether a bill or its clauses comply with or contradict the Constitution.
In his 13-year term, this is only the fourth meeting that the President has convened to discuss a Bill. The council has previously assessed bills such as the Life During Pregnancy Bill 2013, the International Protection Bill 2015 and the Judicial Appointments Bill in November 2023. None of these have seen referral to the Supreme Court.
The Defence (Amendment) Bill 2024 offers a first-time opportunity for entities representing both the enlisted and commissioned staff of the Defence Forces to unite with the Irish Congress of Trade Unions pertaining to matters of industrial relations. Furthermore, the legislation introduces an External Oversight Group for the Defence Forces, aimed to guide the evolution of military culture and improve transparency and accountability components. Certain parts of sections 11 and 24 of the Bill, which strictly prohibit Defence Forces members from articulating their views on political or government policy matters have raised constitutional concerns.
Traditionally, Council of State meetings have been inaugurated by a brief address from the President overviewing the Bill and its particulars. Although no formal decisions or votes are cast during a “tour de table”, the session allows members to share their thoughts and opinions with the President. Following this, the responsibility of determining whether the contentious Bill should be forwarded to the Supreme Court to evaluate its constitutionality lies with the President. Post its enactment, if found constitutional, the law’s constitutionality can no longer be questioned.