Constitution (Amendment No. 24) Bill—Report.

Thursday, 17 May 1934

Dáil Éireann Debate
Vol. 52 No. 9

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Question proposed: That the Bill be received for final consideration. (The President.)

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  I move amendment No. 1:

In page 3, Schedule, Part II, at the end of the portion of the column relating to Article L to add the words “The insertion after the words ‘by way of ordinary legislation’ of the words ‘but no such amendment passed by the Oireachtas in respect of Articles VI, VII, VIII, IX, XVIII, XIX, XXIV, XXVIII, XLIII, XLVI, XLIX, L, LXI, LXII, LXIII, LXIV, LXV, LXVI, LXVIII, LXIX, LXX shall become law until after a general election shall have been held and a Resolution approving of such amendment shall have been passed by Dáil Eireann on the recommendation of the Executive Council first elected after such general election.’”

The object of the amendment is to ensure that any amendments of the Constitution which are effected by the Dáil will not be equivalent, merely, to an ordinary Act of the Oireachtas, under Article L of the Constitution, before the expiration of a period of 16 years from the date of the coming into operation of the Constitution. During that time the Constitution can be amended by ordinary legislation; in other words, by an ordinary Act of the Dáil. Any such Act of the Oireachtas, purporting to amend the Constitution, within that period can, therefore, itself be altered or repealed or amended by another ordinary Act of the Oireachtas. Therefore, when the Seanad has been abolished, in accordance with the terms of this Bill, the position shall be, unless some safeguard such as is proposed in this amendment is inserted in the Bill, that the Constitution will have completely disappeared or, if it does not disappear, will be alterable by an ordinary Act of the Oireachtas.

[1169] The Articles supposed to safeguard the rights of the citizen, as set out in the amendment, are fundamental Articles of the Constitution. Article VI provides for the inviolability of the liberty of the subject, and the remedy by way of habeas corpus for unlawful detention; Article VII provides for the inviolability of the dwelling; Article VIII provides for the guarantee of the citizen's right of free expression of opinion, and so on, with the various Articles enumerated in the amendment. It is obvious that if these fundamental rights are to be continued in any way that will give any safeguard to the citizens there must be some check, after the passing of this Bill abolishing the Seanad, against depriving the citizens of this State of these fundamental rights by the passage of a mere Act of the Oireachtas which could be done in the course of a few hours in this Dáil. That is the object aimed at in this amendment. It is proposed in respect of these Articles which set forth, and guarantee to the citizens of the State, the various fundamental rights enshrined in the Constitution— that Articles, subject to the provision of Article L, that they should not be in a position to be repealed, altered, or swept away by an ordinary Act of the Dáil. The proposal is that during the residue of the period of 16 years mentioned in Article L the guarantees contained in these Articles for the rights of the citizens should be preserved by making it impossible, constitutionally, for the Dáil to pass an ordinary Act in any way prejudicing or affecting those rights.

The proposal is that the Constitution, during the residue of that period, can still be amended by ordinary legislation which will amount now to an ordinary Act of the Dáil, but that that Act shall not operate as law until after a general election has been held during which the people will have an opportunity of expressing their opinion on the Constitutional amendments that have been proposed, and that after that general election, whatever Executive Council is elected as the result of it will have complete control [1170] over the situation. If the Executive Council that originally proposed an amendment to the Constitution is returned, by the mere passing of a resolution of the then elected Dáil the Constitutional amendment will there and then become law. On the other hand, if the Executive Council that proposed the amendment of these fundamental rights is not returned and the Executive Council that does take its place takes a different view from the previous Executive, it has complete control over the situation.

This Dáil is no more sovereign than any of its predecessors or any of its successors. The Dáil—the Oireachtas as it stands at the moment—is a sovereign Assembly. Its sovereignty is to some extent cut down by the Constitution and by the provisions of the Constitution, but to the extent only to which the powers of the Oireachtas are cut down by the Constitution. The Oireachtas is sovereign and the position would, therefore, be that this Dáil could, if Article L is allowed to remain in its present state, sweep away the entire Constitution of the State by an ordinary Act of the Dáil passed in a few hours. It is obvious that some remedy must be found for that state of affairs.

The President has down in his name an amendment dealing with the position of the judges. He has expressed the view of himself and his Government that they accept the principle of the independence of the judiciary, and that the only matter between himself and the Opposition was one of the numerical amount of the majority which was necessary to remove a judge. Now if that amendment is carried, as I presume it will be, and inserted in this Bill and the Bill becomes law, the Constitution, of course, is amended ipso facto, but the law which amends the Constitution to that extent is itself only an ordinary Act of the Oireachtas which can itself be repealed by another ordinary Act. Therefore, as things would stand, except some such principle as we are proposing is inserted in the Bill, the independence of the judiciary would not be preserved even by the President's amendment, nor even by [1171] the amendment which we proposed on the last occasion when the matter was before the House.

We want to see that the fundamental rights of the Constitution, guaranteed by the Constitution to the citizens of this State, will continue to have some effective guarantee. Under the system of unicameral legislation which will obtain if this Bill becomes law, and if Article L is allowed to stand as it is at the moment, there will be no effective guarantee for the Constitutional rights which, for the moment, are set forth in the Constitution. The right of freedom of expression of opinion can be limited in any way and on any day by an Act passed by the Dáil. The Article which provides for the freedom of expression of opinion, Article IX, can be amended by ordinary legislation in accordance with the provisions of Article L. To take that Article as an example, we propose that the constitutional right of the citizen freely to express his opinion and freely to form lawful political associations should not be made the sport of whatever political Party happens for the moment to form the Government of this country. We propose that if any Government, having a majority for the moment in this House, wishes to interfere with the constitutional right of freedom of expression of opinion that they will not be enabled to do that by means of their chance majority, or the majority which they happen to have for the time being, but that, before any alteration is made in such a fundamental right as that, the people should have the opportunity of expressing their opinions as to whether their constitutional rights are or are not being interfered with. We suggest that the proper way to do that, in present circumstances, is to provide that no such amendment to the Constitution in reference to that fundamental right, or in reference to any of the fundamental rights set forth at the moment in the Constitution, should be capable of being prejudiced, or in any way affected by an ordinary Act of the Dáil before the people have had any opportunity of expressing their opinions upon it. In the last couple [1172] of weeks in this House we have heard a lot of talk about democracy. The proposal that we are putting forward is essentially democratic. It should not be in the power of the Executive Council to interfere with the guaranteed constitutional rights of the citizens.

On the occasion of the Constitution (Amendment) Bill which the House considered a few weeks ago the Minister for Industry and Commerce challenged the Opposition to give reasons why the Bill which he and his Government were fostering in relation to the deprivation of the Universities of their representation should not be passed. That, apparently, is the attitude of the present Government. I pointed out on that occasion that the Universities had a constitutional vested right at the moment, and that the onus lay on those who were taking away that constitutional right to give reasons why it should be taken away. The same argument could be put forward in relation to other constitutional rights unless some such provision as we are proposing is inserted in the Constitution. The Ministry may bring in a Bill to provide for the limitation of the right of free assembly, the right of freedom of expression of opinion and the Minister for Industry and Commerce will use the same—I was going to say—arguments, but it is really lack of argument. He will ask the Opposition why should not the right of freedom of expression of opinion be cut down. The Government, he would say, is charged with the duty of preserving public peace, that they think the people should not have the right of expressing their opinions; that the Government have been elected by the people and that nobody should open their mouths against the Government or say anything by way of opposition or criticism. The Ministry would ask the Opposition for reasons as to why that right should not be cut down rather than take up the attitude that it is upon them to justify the proposal to take away a vested constitutional right.

We have some reason to anticipate that these rights may be in some way [1173] whittled down by the present Government, having regard to their attitude and to the fact that recently they brought in a Bill to take away a right which was vested in certain people under the Constitution, a right which has existed in this country for nearly 12 years. For these reasons which, I submit, are quite unanswerable, we put forward this amendment, not believing that it will be accepted, but looking forward with a certain amount of derisive anticipation to the ridiculous arguments that will be put up against it.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  Is the amendment being accepted by the Government?

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  I was astounded to hear the mover of this amendment say that he presumed it was not going to be accepted by the Government, but I am still more astounded to see a certain movement on the part of the head of the President indicating that he does not propose to accept it. I know that members of the Government and of their Party have habitually assumed that the sovereignty of the Government implies unlimited sovereignty. It seems never to have entered their heads to wonder why it was that in Christian civilised countries generally there has been such complicated machinery of government. There has been the equivalent of the Dáil, the House of Commons, the Chamber of Deputies or whatever it might be, with extraordinary powers, and yet there is another power able to veto their action and to prevent their doing certain things. There has been a monarch or a President working in conjunction with these two bodies, and the whole three have had to work within the framework of a Constitution. As far as I understand it, the reason that a Constitution exists is that, although it is necessary to have in a State a Government with the power of life and death in order to promote that rigid justice and that order which are requisite amongst people living in society, at the same time the human person is superior to the State.

It has been said that as individuals we are subject to the stars, but as persons we control the stars. Any person [1174] in this country, judged by the end for which he is created, is of infinitely greater importance than the Irish nation, as a person. One of the notes of the person is that the person is the centre of liberty. We, created persons, must necessarily of right, by our very nature, possess liberty, but the Government's idea as far as I have been able to judge from the statements and actions of the Government, and particularly by the nod of the head of the President a few moments ago, is that there is some extraordinary right existing in a Government or in a majority, which right must not even be challenged, no matter how it operates. Here, these Articles that are in the Constitution are there because they are the right of the person over against the State and over against the Government, and any attempt of the Government, or of any institution, to claim power to obliterate these rights, is an act of diabolical tyranny and can imply nothing else but the act of a most completely tyrannical person. The people of the country have rights, no matter what Government is in power, that no Government has any right to take away from them.

The whole idea of the Constitution, one may say, in other countries was to have a sovereign State. You have Governments elected with sovereign authority over the whole State but the Constitution is there controlling the Government's actions and the reason for that is that it is right, proper and necessary that the Government should have some restraint put upon it. What restraint are we going to have here? Here we have the position where there is an Executive Council with a servile majority in the House. Not only the present Government but any future one, can, on any one day they choose, obliterate any innate right that exists in the human person in this country. There should be, I maintain, power to put a legitimate limitation to the possible operation of the powers the Government claims. Here we propose that the fundamental rights of the human person in this country cannot be taken away by the Government. What we are proposing, however, is in itself inadequate because if the [1175] Government propose to operate against those rights, and if it brings in a Bill here and goes to the people of the country, and the country for a while votes in favour of these rights being taken away, that is an act of tyranny, an act of injustice and an immoral act. Actually, therefore, the proposal we make here is inadequate but at the same time we can see that it is morally impossible, or that it is morally unlikely, that certain things proposed by a Government that are clearly against justice, would receive the assent of a majority when they went to the country or that they would only receive the assent of the majority if there was some particular reason why the rights should be limited.

Here we have an extraordinary situation. The Government that came into power first of all denied the Governor-General—I think, strictly speaking, he should have certain powers vested in him, though I admit we took them away—power to go to a tea party or to give a tea party if he wanted. Then they proceed to abolish the Second Chamber. They now want power to say that no matter what they may decide in their minds, whether it is against the best interests of the country or not, it must become law by their desire alone. The President might say that he has no intention of ever taking any action to deprive the people of the rights that they are guaranteed by these Articles of the Constitution. He might say that and he might be sincere about it. We know on the other hand that he might change his mind as he has often done before. It is not so many months since he went round the country denouncing us and saying that we wanted to establish a dictatorship. A dictatorship, as I understand it, is a tyranny by one person, government by the will of that person and his supporters and not according to wellbeing of the general body of the people. We get up and we say that there is nothing further from our intention than the institution of a dictatorship but let us assume that we may change our minds at some later stage. Not only that; it might not [1176] be we only who would come along to set up a dictatorship. If the President were honest in his apparent indignation and in the fear that he expressed that when we proposed a corporative system that implied a dictatorship, what is he doing at the moment? He is not only smoothing the path for us but he is removing every possible tiny obstacle that might be in the way of any person who might possibly get some sort of snap majority. He is removing every obstacle from the way of such a person setting up a permanent and absolute dictatorship.

If he accepts this amendment it is true that he himself can form a reasonable judgment as to what he may want to do within the next four years. He may give himself the particular latitude that he may want to do certain things. At the same time, all we are proposing is that there should be this limitation on Government action although we could not possibly be the Government until the President's Party has ceased to be the Government. It is true that we cannot make a fair estimate of the protection that we would require but I would ask him if he does not intend to accept the amendment to say that he does not propose, in relation to the rights guaranteed in the Constitution, to take them away without having the matter submitted to the people. With the best motives in the world, he may say it is perfectly ridiculous that any limitation should be put on the Government. He may say that everybody knows him and that our people know perfectly well that he would never want greater power. He may say that he is never going to sin against the light or to take away from the people rights which are necessary for them and to which they are entitled. He may think so and he may be quite convinced of that—and it may be quite true—but he must recognise that here he is creating a position that if to-morrow anything happened, as it might—God between us and all harm—that quite a number of Fianna Fáil Deputies might die they would be in a minority. What would happen then? Another Party would come in, or there would be a [1177] general election, and the President would be handing over to the people whose policy and outlook he thinks is directly against the interests of the people, power to do anything they like —complete, absolute and uncontrolled power over the lives and actions of the people. That is what he would be doing. With that enormous confidence that he has in himself in any arrangement of the kind he must look a little beyond to-day. I admit we created a situation in which the Constitution could be changed by ordinary legislation. We recognised that it was a dangerous situation. On the other hand, we felt the need to pass over to some Government coming after us certain latitude, as experience might show that there were certain things which, if they remained in the Constitution, might be a hindrance to the progress of this country. At that time it was required that a Government elected at one general election would have to be convinced that such a change was good and, at the same time, that the other House, the Seanad, elected at a different time and at a different moment in the country's history, would have to concur. That was quite an inadequate limitation, but it was some little limitation.

The President brought in certain Bills which he says he was convinced were necessary. He wishes to put down the wearing of blue shirts. We think that was motived in his mind by a certain dictatorial attitude of his. I have no doubt he felt he was justified in taking that action because he thought the Blue Shirt movement represented a menace to the State and a menace to public peace. When the Seanad used their powers to delay that Bill for 18 months, he took a short cut and said he was going to abolish the Seanad. But his action in abolishing the Seanad was really a minor effect. That was a negative act. As a positive act an Executive Council that, at any time, came into power would be absolute dictators. They need not consult anyone about what they desired to do, as their own servile followers would be prepared to agree. With this power and their followers [1178] they could abolish the whole Constitution and could establish themselves in perpetuity in this country. That is the position the President, by his own action, has created. He resists any attempt to prevent him getting rid of the Seanad and he purports to prevent that situation arising with regard to the judges, if I may say without offending him, by making an offer on the old lines of the cow for sale. I would like to hear him putting up any sort of case against this amendment. If he is going to do so, he must indicate with regard to the specific clauses why he requires to be able to abolish those rights which were assured to the people without first having submitted the proposed change to a general election. At the same time I wish to say that I do not consider the amendment adequate, because, if there was a proposal by which a Government could take away my fundamental rights, and if the country voted solidly for that, I would still deny the right of the people to take these rights from me.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  Are we to have no reply? I am afraid Deputy Costello is going to be disappointed, as he will not have the pleasure of hearing the ridiculous arguments that might be put forward against the amendment. I can sympathise fully with the President and with the Attorney-General. They are showing remarkable reticence and modesty in not trusting themselves to arguing against the amendment. The amendment has been put forward and has been supported and ample opportunity was given to the President to define his attitude, if he has any attitude to justify him.

Here is a Bill, so important that it proposes to abolish one member of the Oireachtas, namely the Seanad, and on the amendment that tries to rescue some of the rights of the people that are threatened, the Executive Council is silent. They do not wish to speak. Apparently they have no argument in favour of whatever attitude is to be revealed to us in the Division Lobby. One of the obvious things with this Bill going through—and I think the danger is illustrated by the contemptuous [1179] attitude of the Government to the House, including their own followers—is that this House is to be turned, when there is an opportunity, when they have an argument, into a mere machine for registering the decrees of the Government. Of course, that is the obvious fate that is always in front of a single Chamber. That is the danger. Even in this small matter of courtesy to the House, I suggest the President reveals his attitude, contempt for the body that he intends to make a mere registration machine. After the eloquent pleas he has made against this amendment I have no doubt he has fully convinced his followers, and that they will follow him obediently into the Lobby perhaps in more good faith than if he had put forward arguments.

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  That is getting a bit stale.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  So are the arguments of the President. Is it a fact that they follow the President blindly?

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  They follow him everywhere.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  Absolutely blindly, with or without reasons being brought forward by the Minister or by any of the Ministers alleged to be in charge of this Bill. Whatever may be said about the Seanad there is a certain amount of independence shown there. They do not blindly follow the Minister, and when they are allowed to vote they show unanimously what they think of the Government's proposals.

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  We cannot help them if they have no brains.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  I never suggested that the Deputy is responsible for the brains of the supporters of his Party in the Seanad. I am referring to the attitude of his own Party in the Seanad. As the mover of the amendment and Deputy Fitzgerald pointed out, the amendment tries to make one last effort, so to speak, to save the country from the very obvious dangers that are unfortunately familiar to everybody who knows anything about the unicameral system; to save it from [1180] these dangers, and to prevent what it would be extremely difficult, if not impossible, to avoid if the Bill in its present form became the law, namely, the setting up of permanent Party despotism in this country.

When speaking previously on this question the President referred to bedrock. We have not got down to it. Is there any bedrock in constitutional matters where he is concerned, is it not dealt with in these Articles that this amendment, to a certain extent, tries to safeguard? For the President, is there anything fundamental in the Constitution? For him, is there anything fundamental so far as the rights of the people are concerned? He cannot pretend, as he did on previous occasions, that national principles are involved and that, therefore, he must trample on certain Articles of the Constitution. He used make a distinction between certain Articles of the Constitution that flowed from what he called an imposed Treaty and other Articles that flowed, apparently, from the fundamental rights of the people. What this amendment proposes to do is to safeguard, so far as an amendment to this Bill can, rights that were regarded at one time by all Parties in this country as fundamental. It is not an attempt to safeguard what he used call, at one time, the imperialistic Articles of the Constitution. These are Articles which would have been put into any Constitution of this State even if the State were not bound by any Treaty. He utilised, to the great disadvantage of the Irish people, the imperialist argument against certain Articles of the Treaty. To a certain extent, he got away with that. The House and the country will notice that he is equally warlike against the ordinary Articles of the Constitution— Articles that guard the rights of the Irish people. The House will notice that his policy is fatal to these rights, as it was fatal to some of the Articles in the Constitution that flowed from the Treaty. His policy is equally destructive of both, but he cannot raise the imperialist bogey—it was nothing else—so far as these Articles are concerned. Yet, he is quite as hostile to [1181] the working of these Articles as he was to the working of the Treaty. They have one fundamental weakness from his point of view—they stand in the way of the exercise of his power. To put it in a way which he may prefer, they prevent him from putting into effect all the ideas he believes are for the good of the country. It is for the country to decide what is for its good and not for even a heaven-sent person like the President.

Why are these Articles necessary? There were hints occasionally from members of the present Government when they were elsewhere, and there are hints even now, that a Constitution may some time be good for this country. Why? Because it is necessary that limitations should be put on the power of an Executive and on the power of a majority Party in a Parliament. That is one of the fundamental purposes of a Constitution. That is why it is framed. That is why most Constitutions with which I am familiar include what are called “fundamental Articles.” These Articles cannot be abrogated by a Government or a majority which may be merely a passing majority. The people feel that these Articles are necessary if any meaning is to be given either to constitutional liberty or to democracy. That limitation is needed in the case of every Government, no matter how enlightened or inspired. If it is the wish of the Irish people to do away with both constitutional government and democracy, and to set up a form of despotism, that is another matter. But if you are to have democratic and constitutional government you must have safeguards of this kind.

The President spoke of our being in a state of flux at present. Does not everybody recognise that he is determined to keep this country in that particularly fluid condition? Does not everybody recognise that he is determined to keep the country like a mass of molten lava? Is not that the whole aim of his policy or, if it is not the aim, is it not the result of his policy? Is he not determined that the country will not settle down? Is it not a fact that he and his Party find that they can fish best in troubled waters? They [1182] realise that they can make most out of disturbed conditions, out of that state of flux which the President referred to in his speeches. He made it clear that he envisaged a continuance of that state of affairs for quite an indefinite period. If the Government opposes this amendment, it will be obvious that there is no such thing as bedrock for them, that this country is not to be allowed to go to rest. That is the policy of the Government. Naturally, every class of that type who have got into power have acted as revolutionaries in possession. That is what they are. What is the objection to safeguarding the Articles dealt with in this amendment? We are waiting to hear the objection.

We do not want the mere pious expression—I am using the word in its semi-slang meaning—on the part of the President that he likes these principles and that they appeal to his heart. Fundamentally he is in agreement with them. We want to know what he is going to do to preserve them and to see that his Government and every Government honour them and honour them not by saying how deeply they are attached to them but by acting up to them. We can only assume, if he rejects this amendment, if he refuses to safeguard these principles, even to the limited extent to which this amendment tries to safeguard them, it is because he knows perfectly well that he is going to violate these principles and that though his heart melts when he goes to look at these principles, in reality he is going to trample them underfoot.

As has been pointed out by Deputy Costello, and as has been shown in this House by other Deputies, the Government have given proof already of their intention in this respect. They have done these things several times in the past in one of the most peaceful countries in the world, and they have done these things in times of peace. What are they prepared to do —what do they think they are prepared to do and what are they thinking of doing in the times of heat and excitement that may crop up in any country? Can the Dáil then stand between the people and the despotic [1183] exercise of power? Does anybody think it will? It is in a moment of that kind that safeguards are more necessary than at any other time. But it is precisely at moments of that kind that it is quite clear the President is to violate these Articles of the Constitution.

Why is there not, after the previous protestations of the President, a ready acceptance of this amendment? Were these protestations that he made when in opposition—this talk about the freedom of the Irish people—for the one purpose to see that that freedom would be dependent on the will of an individual or Party? That is not freedom. That is not democracy. There are tremendous dangers inherent in the unicameral system. Some of the worst terrors that have been set up anywhere have been set up because of the unicameral system. It was found that one House of legislation was capable of being turned into a registration machine.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  Give us the history of it.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  Well, I do not see the necessity of instructing the President in these matters. I have already pointed out that historical examples are there for him. I want to appeal to the ordinary sense of the people. Everybody knows that that particular danger is there in a unicameral system. The speches made by the President and the actions of the Government must convince anybody who does not prefer to be blinded in this matter how great the danger really is. Any despotic Government that desires to usurp rights against the nation always finds excuses. As I previously pointed out, the President has already been finding excuses for despotic action in the future. “Factious opposition!” Well, “factious opposition”’ is never out of the President's mouth. In reality factious opposition means opposition to him. It means criticism of him, criticism even here in the Dáil.

One of the Articles that this amendment tries to guarantee and to preserve [1184] deals with the right of Deputies elected by any section of the people to come and give expression to the views of their constituents here in the Dáil, but that Article can be swept away. Does anybody who has watched the Fianna Fáil Party in the last two years, and has seen them trample on every principle to which they professed allegiance when in opposition, think that those rights will be safeguarded? Does anybody think that the Fianna Fáil Party or the highly interested Labour Party are a safeguard for the people's rights or that they will save the people from despotic action on the part of the Government? The danger is really there and it would be criminal on our part to overlook that danger.

We are trying by amendments to this Bill to safeguard certain rights of the people. I hope at last the President will be induced to break the Trappist vow of silence that he has put upon himself. We have heard the old protestations that the Government has a sense of responsibility; that the Government elected by the people must be supposed to have a sense of responsibility. I admit that the Government should be supposed to have a sense of responsibility. But the reason why Articles of this kind were inserted in the Constitution is because no Government should be given despotic power and no Party should be given despotic power. The judges are there, as has often been pointed out, to decide even between the claims of just men. Constitutional Articles of this kind are put into the Constitution to limit despotic action on the part of any Government no matter how excellent its intentions. Unless a despotic Government is wanted these Articles should be retained. If you want democratic government these Articles must be preserved. Articles of that kind can be violated if there is not protection for the citizen under Article IX. As the thing stands, all these rights of the citizens can be swept away, not because there is any ground for sweeping them away but because the exercise of these rights irritates the head of the Government, irritates the members of the Government and irritates the Parties who support the Government.

[1185]Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  I am not disappointed at the silence of the Government. I am merely disgusted. Every time the Government Party are doing a discreditable and disgraceful thing in this House they merely hang their heads and, relying on a machined majority, sing dumb. The President may grin. It is not the first time that the President has grinned. And it is not the first time his Government has done a discreditable thing in this House. What are you doing in the sacred name of democracy? You are destroying everything that stands for democracy in this House. You are depriving the people of the rights which they enjoyed before your time. You were talking about the sanctity of democracy, and the only vocal sign we had from the Government Benches was an interruption by Deputy Donnelly: “We followed the President before and will follow him anywhere.”

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  Absolutely.

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  Oh, oh!

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  The Deputy says “absolutely,” and it is put up to us to make a case for the retention of the things which the Government desire to destroy. The same argument could be advanced for the retention of the Mallow Bridge. Is the onus always to be on us to make a case for retention and is the machined majority, by their silence, always to be destructive? Well, at least, their act was clothed with the decency of silence. Neither the President nor the Attorney-General, nor any statement from those benches except Deputy Donnelly's interruption, tried to make a case against this amendment which, in fact, is laying it down that the people have a right to speak.

There is great confusion nowadays between a majority in this House and a majority in the country. A majority in the country, as everyone over there knows, the President in particular, may be secured by the most brazen and dishonest promises. We have the President grinning over there. He secured a majority in this House by the most brazen and dishonest promises that were ever made to an electorate, and now he grins at the poor dupes [1186] who voted for him, and he knocks down, one after the other, every kind of protection that the people had from his tyranny. The Seanad has got to go as a matter of policy and, we are told, as the result of a mandate. Why did you abuse that mandate 12 months ago if you had it? If you had a mandate to destroy the Seanad, to remove it, why did you come in here with a finicky Bill to limit the power of delay of the Seanad? Was it not because at that time you believed you were even exceeding your mandate? If that was not so, if that was not the intention of the Government as a result of the vote of the electorate, then it was dishonest, and it was abusing the trust of the electorate. But 12 months after you come in with a Bill to destroy that institution.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  Is this discussion pertinent to the amendment?

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  If the President wants to interrupt, will he stand up?

Professor O'Sullivan: Information on Prof. John Marcus O'Sullivan  Zoom on Prof. John Marcus O'Sullivan  Hear, hear! He should have some respect for the Chair.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  I raised a point of order. I asked whether that speech was pertinent to the amendment.

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  No, it is not pertinent to the amendment. The Deputy has travelled farther than any other Deputy so far and what he has said certainly is not pertinent to the amendment. So far as the President standing up is concerned, that is a matter for the Chair.

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  Might I ask the President what particular point in my speech he objects to? The President does not reply. Might I ask the Chair what is the particular point objected to? The gist of this amendment is that when the Seanad goes, any legislation passed by this House will be referred back to the people at a general election. The reason for this amendment is because the President, by his legislation, is out to destroy, to remove, one of the safeguards which the people had before his time. The reason this particular Bill is introduced [1187] is because the Second House asserted its legislative function in the interests of the ordinary democrats of this country by interfering with the President in his attempt to annihilate one of the emblems of the political opposition in this country.

The President, all during his time in public life in this country, has objected to opposition and has at the same time bleated about democracy. He has only recognised the sanctity of the rights of a majority when he, by a slick trick, secured a majority. He has not, however, a majority in the Oireachtas. The people who have powers not of vetoing, but powers of delay, exercised those powers of delay and they have got to go and, recognising that the majority here will secure that in the course of time they will go, an amendment is put down here to say that if they go, well, then lean back on the people, lean back on real democracy. The President indicates “No” by his silence and he is fortified in his attitude by the weight of the votes behind him. He has neither the courage nor the manliness to stand up here as a real tyrant, a real enemy of democracy, and to say in so many words why he objects to an amendment to refer power back to the people. Make no mistake about it, if this amendment is rejected——

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  Why did you take away the Referendum?

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  You interrupted once, Deputy Donnelly, and not with great success.

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  May I ask the Deputy, with all respect——

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  On a point of order, if you like.

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  Well, on a point of order. May I ask on what grounds did your Party remove the Referendum from the Constitution?

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  I do not believe that is a point of order, but, nevertheless, Deputy Donnelly will get his answer in due course. At the present moment I am dealing with the amendment before the House, and no red herring is going [1188] to attract me away from this particular matter. There is no good in talking about democracy and standing against this amendment; there is no good in talking about the rights of the majority of the people and at the same time opposing this amendment. We are waiting patiently to hear any case made against the amendment, except the argument of the majority, secured on promises which will never be fulfilled. I am ashamed of the silence of the President. If he has any case to make against this amendment, why does he not stand up and make it? If there is no case to be made against it why does he not accept it? The whole point in this amendment is that, before a Bill becomes law, a Bill interfering with the Constitution, the people should have a right to speak. Are you afraid of the people?

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  No.

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  I am not surprised that you are. Your actions during the last 15 months have opened the eyes and the minds of the people to the type of men they have put in charge of this State. We got advice from the Minister for Industry and Commerce within the last 48 hours that the way a Parliament should be run is by getting the political Parties, each of them, into a room, each member of the Party agreeing as to what he is going to say when he comes into this Assembly. We know that has been the practice of the Deputies opposite, and that is the greatest curse of this Parliament; that is what makes it a humbug, and that is what makes it necessary that there should be some court of appeal over and above the majority Party in this House. According to the Minister the Party opposite is composed of men who meet in a room and each of them is told what he is going to say and then afterwards they come in here and say it, each one responding to the whip, to his master's voice. What this country has got to know is whether it is going to be ruled by one man or by a Parliament.

Heretofore we had an Oireachtas consisting of two Houses. One House is to be abolished now because it defended the rights of the political [1189] opposition in this country. An attempt was previously made to abolish, to stampede, to trample on, that political opposition. The ordinary reaction of the Irish people to tyranny stood up against that and beat it, and then what you could not do by the mob you try to do by legislation. Legislation failed because of one of the Houses that constitute this particular Oireachtas. Accordingly, that Second House has got to go. Then, when your illegalities were held up by the courts, and when the courts were protected by that Second House, the Second House has got to go first and the courts afterwards. As a substitute for that Second House, this amendment proposes the people. You have all been talking about the people, and this amendment is calling the bluff. Are you prepared to listen to the voice of the people? Are you prepared to hear their commands? Your answer to this amendment will be the answer to that particular question—whether you are prepared to abide by the voice of the people or whether you want to trample on the voice of the people.

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  I had not the slightest desire, I assure you, Sir, to take part in this debate at all, but naturally, after the kind of semi-invitation thrown across from Deputy Doctor O'Higgins— and, needless to say, after the very friendly tone in which that invitation was extended across the House—one has to respond to it. Instead of speaking to the amendment, as far as I could judge from what the Deputy said, his speech was more concentrated all the time on a bitter personal attack on the President. The adjectives the Deputy used ought to be cherished. They ought to be taken down by some industrious Deputy and put on a long list for future reference when any Deputy in this Dáil wants to attack another Deputy. They are really choice words—every one of them characteristic of many of the speeches the same Deputy delivers in the country when he is taking a tour either in his own constituency or in any other constituency. To a certain extent, I must admit, they are enjoyable—and I myself do enjoy them—because they are [1190] characteristic of the Deputy, and I should not care to listen to a speech of his unless there was a good supply of these adjectives in it because, otherwise, I would not recognise the speech as his.

The Deputy asks us, of course, are we afraid of the people? That is the usual kind of question we are used to from the Opposition. Is it not time that they ceased to ask that question from the Opposition? We went to the people twice within 12 months. We went to the people with our programme. There were a number of by-elections before that. We went to Longford-Westmeath and the people gave us our answer there. That was the time when the old Cumann na nGaedheal organisation took to the youth. After Longford-Westmeath we went to the people of Kildare, and we got a reply there. Following those by-elections, we had a general election, and the organisation responsible for the Opposition at that time ceased to exist. At the last general election we got a clear majority over all Parties. On top of all that, the Deputy still asks the question, are we afraid of the people? He also hurls across at us the jibe of our doing certain things in the interest of democracy. He, certainly, is a peculiar champion of democracy. As a matter of fact, he is an extraordinary champion of democracy at the moment. I think that his vote was registered in this Assembly for the removal from the Constitution of the Referendum which was the greatest safeguard that democracy could have.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  Question?

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  Well, it was removed out of the Constitution when we, when in opposition, tried to make use of it, and we find now that this body that took away the safeguard for democracy are engaged at the present moment in trying to put back into the Constitution something that they themselves took out of it. This is to be the safeguard for democracy that Deputy O'Higgins wants. As I said to Deputy O'Sullivan, his argument about our Party machine is getting a little stale. We have our Party meetings and we get our orders there and we [1191] act accordingly, according to him, and there are no similar Party meetings held by the United Ireland Party. I can quite understand that, because no two of them could agree about anything, judging by their meetings. We, however, agree and we have a loyalty and fidelity to our leader that certainly will mark every action of ours. We are proud of that loyalty and fidelity and we intend to carry on in that spirit. We showed our leader fidelity and loyalty when he was in the wilderness, and we will continue to show fidelity and loyalty still. Deputy Doctor O'Higgins may refer to it as “His master's voice”, if he likes. I would advise him that the sooner he can get into his Party the same loyalty for leadership the better it will be for his Party. It would do him no harm and would do a lot more good than this perpetual jibing and sneering at what people ought to be proud of— the characteristic of fidelity and loyalty to a political leader.

Dr. O'Higgins: Information on Dr Thomas Francis O'Higgins Snr.  Zoom on Dr Thomas Francis O'Higgins Snr.  It is belated with some of them.

Mr. Donnelly: Information on Eamonn Donnelly  Zoom on Eamonn Donnelly  At any rate, it does not exist at all over there. The only leader of commonsense and ability they had has been jockeyed out of his position and Heaven help the Party if his successor carries on.

The President rose.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  On a point of order, Sir, is the President to conclude?

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  I moved the amendment, and if there is anybody to conclude I have the right to conclude.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Is that right?

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  There is no need to make any speech on this amendment because everything that is to be said about this amendment was said already a dozen times, and all that the Opposition could say in favour of their amendment would only repeat, in anything but a very convincing manner, arguments which they had put forward a dozen times already. I thought that, when Deputy O'Sullivan was speaking on this occasion, he might give us some of the cases of disaster he pretended [1192] to have on a previous occasion. I asked him before to give us these examples of the disasters that followed a unicameral system. He is a Professor of History and he spoke as one who knew all about these things and had them at the tips of his fingers. I asked him for these examples on this occasion, and again, although he pretended that he knew all about them and that, in fact, every schoolboy should know about them, he did not deign to tell us what they were. We would have listened with great interest to the stories of the disasters that had followed the unicameral system.

Now, we are not accepting this amendment. The method that is proposed, that of a general election, as a means of testing this precise type of question, has been objected to by me on more than one occasion, both on this side of the House and on the other side. I objected to this method of getting a decision because, at a general election there is a variety of questions before the electorate and when a decision is wanted on a specific matter like this, I think it ought to be sent alone to the people for consideration. Therefore, if there was to be a check, I think it should be by way of a referendum and not by way of a general election. It is very interesting to hear the Deputies on the other side speaking as if the whole of the democratic foundations here were to be overturned because the Seanad was removed. Everything was going to go wrong because this Seanad was going to disappear. That has not been the opinion of the people and let the Deputies, when they go out to the country, tell the people what a supporter of their liberty the Seanad as a House has been and ask the people whether they are not frightened at this bulwark of their liberty being taken away.

There are in the Constitution two types of Articles. The division was referred to by, I think, Deputy Professor O'Sullivan. There are those which might be inserted in the Constitution of any democratic State and there are those which everybody knows were inserted in the Constitution here because of a threat of war [1193] and outside pressure. Now, I think, there is one ground on which we can get agreement between both sides of the House and I propose to have carefully examined these fundamental Articles dealing with the democratic foundations of the State. I do not mind if these are fixed so that they cannot be changed by ordinary legislation without some such provision as a Referendum to the people, but I do not want that done by way of an amendment introduced without proper examination and in which there is no attempt whatever to deal with all these Articles.

I do not know that all these Articles are perfect and I do not think that our predecessors found them perfect. If it is agreed that we should go through the Constitution and take out these Articles which have not any immediate relation to the Treaty and, having examined them, say, with the experience of administration which has now been got by both sides, whether we can in their regard perhaps modify Article L, again I say it should not be done in this particular manner. I also hold that the method by which the will of the people should be tested in regard to Articles of the Constitution should be by way of Referendum and not by way of a general election.

I am not then going to accept this amendment. If all these Articles are carefully examined it will be found that some of them are not without being entangled with the Treaty and with the Constitution that has been framed with special reference to the Treaty. I cannot, therefore, accept these, as they are here, as clearly separating Articles of the Constitution which may be regarded as having relation to the democratic foundations of the State and the liberties of the citizen. I do not agree with the argument of Deputy Costello because, if his argument were quite sound, nothing we could do here would affect the situation. All our work here would be idle, if we cannot do anything here by way of ordinary legislation which would put difficulties in the way of legislation later for revising this Constitution. I believe, for example, that the provisions in the next two [1194] amendments in my name do secure that these particular Articles will not be altered except under conditions which have been definitely laid down. There is not, I think, anything further to say. It has been suggested that because we do not accept these amendments we are going straightway to abolish all these Articles or to interfere with them vitally. That is not the intention at all. What is being done, I remind the House again, is that the Seanad, as a Second Chamber, is being removed, and it is being proposed that, instead of having two Houses in future in the Oireachtas, we shall have one.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Probably the last couple of words in the statement to which we just listened epitomised the whole situation. “There is nothing further to say”—having really said nothing. Let us examine the situation from the historical standpoint. Twelve years ago a Constituent Assembly considered a Constitution which was presented to them by a Provisional Government, that Provisional Government having had the opportunity of being advised in that connection by a responsible Committee of citizens, one of the Committee—a person who was not a citizen of this country, and not a citizen of any European country, assuming for the moment that Great Britain is in Europe—having been taken into council. He was an American. They considered the Constitution and they submitted a Report to the Provisional Government. The Provisional Government considered the Constitution, and the late President Griffith and Mr. O'Higgins went to London in connection with it, and there certain representations were made in respect of particular Articles. The Articles in question were disclosed to the Dáil, the Constituent Assembly which considered the Constitution.

The Constitution at that time was considered in a non-Party spirit. It was the first time, one might almost say, for a century, if not longer, and certainly the first time in the history of this country, that a really representative institution in the nature of a Parliament sat down to consider a Constitution, and they considered it, as I [1195] have said, apart altogether from any Party considerations, subscribing, each person, his quota of what he considered would be the fundamental principles of a democratic Constitution, and embodying in it those Articles which were considered and put forward by the British as having in them their conception of the Treaty and their acceptance of the Treaty. In it, so far as the ordinary citizens were concerned, there was the safeguard of a representative body, in the first instance, the safeguard of a Seanad, half of which was elected by the Dáil and half nominated, in the second instance, and then a Governor-General.

There are, unfortunately, biassed views in connection with all three institutions, and people, when considering them, put on, if they so desired, prejudiced spectacles in order to give to their followers, or to the people whose votes they are endeavouring to get, as prejudiced an opinion as is possible, in connection with any one of these three constituent parts of the Oireachtas. The President would be one of those who would tell us 12 years ago that that was not a fit body to consider a Constitution. Whether it was or not, neither he nor any member of his Party could have improved upon the safeguards that were embodied in the Constitution for the democratic rights and liberties of the people. Neither he nor any supporter of his could make any improvement on those Articles.

An amendment of the Constitution was possible through the assent of the other two constituent parts of the Oireachtas. It so happened that without any help from this Ministry, or any member of this Ministry, or any member of that Party, a complete change took place with regard to the authority of the Governor-General. If we could consider that question apart from Party bias we might, perhaps, better appreciate the value which could be reposed in a person occupying that position and doing his duty properly, in accordance with the Constitution and the law. I will just mention one instance. There is there in that Constitution an Article giving a life of six [1196] years to the Parliament. The Seanad will be gone in 12 months' time. There is nothing to prevent an alteration of the six to 12, or 18, or 24 or 30, or for life if you please, in connection with all the members here. There is only one stoppage, which we in our wisdom or unwisdom have provided, and that is the Governor-General saying: “No, I will not sign.” There was his use in that connection, if the office and the holder of the office could be viewed without any bias and without any prejudice. He would be the person who would say “No.” Similarly with regard to dissolution. The President of the Executive Council might not possess a majority in the Dáil; he could refuse to come to Parliament, and go to the Governor-General for a dissolution. There again the Governor-General would be entitled to exercise his discretion, granted now that the inferiority complex in connection with the office is not there. We are now proposing to take out one of the three constituent parts, one having been already parked in safety in Monkstown, and to that extent non-effective. The people of this country are in the position that their fundamental rights are at the will and pleasure of a Single Chamber, and of a majority of one in that Single Chamber. It is not good business. It is by no means good business, and it will not be considered, apart from politics, according to the speech to which we have just listened. Take one particular case. The President said that if there is to be an amendment to the Constitution it should not be effected after a general election. Let me put this question. An amendment to the Constitution is required, let us say, on some small point. There is an Article there, No. XI. It deals with lands and waters and other things of that sort. A small unimportant amendment to it might be required in connection with mineral development or something else of that sort. Are we to be put to the cost and trouble of a Referendum in order to get that? The Attorney-General was going to make some observation?

The Attorney-General:  I do not think the President said that.

[1197]Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I know he did not, but he said that amendments to the Constitution should not be effected after the fashion that is proposed in the amendment, but, if they are to be at all, they should be in the form of a Referendum. If he likes to make his position more clear I am prepared to listen to him. Then we are to take it that if there is to be an amendment to the Constitution after 16 years have elapsed, assuming the 16 is going to remain there, those amendments can, in the opinion of the President, only be properly made if submitted to the people in the form of a Referendum. We have had 24 amendments in 12 years. Twenty-four referenda! Of course they might be bulked, but remember this is a particular case in which a decision would probably have to be taken. The particular Bill which we have before us is one that, at any rate, having regard to the speed of its introduction and the reason of its introduction, would certainly mean a Referendum. We were told in the course of the speech just delivered by the President that he has two amendments in, to safeguard the judiciary on the one hand and the Comptroller and Auditor-General on the other. I should like to know if it is seriously put forward that that security which is there is recommended as a real security. What is there to prevent this Dáil or the next Dáil from taking out that amendment? This Dáil had the right to put it in. Is the next Dáil to be denied a judgement upon that particular action? If it is, then this particular Dáil is more sovereign than the one which will follow. Let us get that point clear.

The Attorney-General:  What about the Dáil after 16 years?

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  After 16 years?

The Attorney-General:  Under Article L.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Yes, quite right, or perhaps before 16 years, if we pay attention to some observations that were made yesterday in another place. That was the opinion of the people after the Constituent Assembly had concluded its work, that every eight [1198] years an opportunity was to be given to amend the Constitution. If it is correct to have spread that out to 16 years, then it is the people who have got the authority; it is the people who have secured the rights, and the Dáil cannot interfere with them. It was stated from the beginning, when the first Dáil came in under the Constitution and properly elected, that it had its opportunity, with the Seanad, of altering the Constitution within a limited space of time. Everybody knew that. The position that is now proposed to be taken up is that this particular Dáil is evidently a more sovereign one than its successors, because it lays down the law which will bind them with regard to this matter.

I will put another question to the Attorney-General. Will he say, as a lawyer, that it is not possible to take out that whole Article, or alternatively to take out the Article which refers to the independence of the judiciary, once this passes into law and we have a single Chamber? What this amendment seeks to do is to ensure for those Articles of the Constitution which affect rights, liberties, freedom of expression of public opinion, and various other things of that sort, something which will put it beyond the power of a majority of one on any particular day to take away any one or all of those rights. Take the particular case of habeas corpus. Is it to be left to a single majority of one to take that right and privilege away from the people?

It so happens that Deputy O'Sullivan will not give us any opinion regarding historical precedents. One thing ought to be taken note of, and that is that the greatest ruffian in history, I suppose, always had legal sanction for his actions, or pretended to have it. I refer to Robespierre. The difference between that Ministry and the Opposition on this question is the difference in our conception of the authority of the Executive. My view on the authority of the Executive is that it must not abuse power; and from what I have listened to and heard I believe that the conception of the Ministry is that, having the power, [1199] they can exercise it without either judgment or discretion, be it an abuse of power or otherwise. My view is that the people give a limited authority to an Executive or to a Parliament. Their view is that having got what they call a mandate or a majority, which is the real thing, they can do as they please. That is not my conception.

This amendment does not hinder or hamper alterations in the Constitution. I am prepared to admit that it is not ideal. The Government should remember when talking about a mandate that the proposal was to abolish the Seanad as at present constituted. It was not put before the people that they were going to abolish it altogether. There were two institutions, one closely associated politically and otherwise with the people; the other having, perhaps, an opportunity of looking at matters from a more detached point of view. The speeches which we have listened to would seem to endeavour to feature the Seanad as a body which had views inimical to the best interests of the people.

The names of two members of that institution have been bandied about by a Minister; one of them being one of the biggest industrialists in the City of Dublin and a good citizen. His political views and mine were, perhaps, as different as chalk from cheese. He spent perhaps the best part of his life in trying to prevent the coming into existence of this State. We should remember, however, that when the Minister in question would not be listened to anywhere as a responsible authority or as a person worth listening to in connection with any public matter, one of these two individuals did all that lay in his power to prevent the division of this country into two parts. Having been practically all his life a Unionist, he became a Dominion Home Ruler the moment Partition was mentioned and has remained one. I met him for the first time when this State was established, and I think it is very bad form on the part of the Minister to pillory a public man, a big industrialist, and a citizen of this country simply because [1200] he held certain views 30 or 40 years ago to which he stood up like a man. Men such as he have lost the power and influence they had but they are citizens of this State and should they not get the rights to which citizens are entitled? They are citizens of this State and should have the same rights and privileges as other persons. It ill becomes the Minister of a Government which is going to wipe out this institution to single out two people for no other reason than that he believed they were politically opposed either to the land movement or the Home Rule movement for a long period.

That is the thing which satisfies me that the Ministry is taking a biased view in connection with this whole problem of the Seanad. If there was any semblance of honesty in connection with that policy the first thing they would have done would be to put themselves in the position of the Constituent Assembly of 12 years ago and say: “We have experience of that; we can realise its imperfections and faults,” and then take the Constitution and see what improvements can be made in it, instead of what mutilations can be perpetrated upon it so as to leave practically none of it at all. Is it the idea that we have to have fundamental law or that we are to have such a state of affairs here as will enable Parliament day after day to change it? There may be people who think that, although you have a Constitution, any Bill, without specifying an amendment of it, could alter the Constitution and could override the Constitution. That was not our view. These particular Articles of the Constitution which it is sought here to preserve will never interfere with an Executive in their administration for the securing of order, peace, good government or anything else. The fact that the Ministry are standing against this and that they have only one apologist out of the whole lot of them to speak against it satisfies us that no case can be made against it. They realise that they are not just men and are not doing the honest thing in not accepting the amendment.

[1201]The Attorney-General (Mr. Maguire): Information on Conor Alexander Maguire  Zoom on Conor Alexander Maguire  I was rather amazed at the speech of Deputy Cosgrave, having regard to what the President said. Deputy Cosgrave must realise that he is quite wrong in saying that there is no agreement that there are certain fundamental Articles which ought to be put in a place apart and not be so easily altered as other Articles of the Constitution. I thought the President made it quite clear that he agreed with that, but that this was not the place and this was not the method by which they ought to be protected. Deputy Cosgrave very cleverly avoided dealing with the attitude which the President made quite clear in his speech. The Deputy sought to introduce such a trivial thing as an amendment of Article XI and to suggest that the President's idea of an amendment only after a Referendum would apply to such an Article as that, whereas I understood that the President made it clear that he referred to certain fundamental Articles which he agreed might be protected in a special way.

Of course, the whole discussion of this amendment is rather amusing. It was a very clever bit of politics. I do not know whether it is of real value to the Opposition. I do not understand what particular value they hope to get out of championship of the Seanad. It would not appear to have any great appeal in the country. I do not think Deputy Cosgrave would care to go to the country on the question of whether the Seanad should or should not be abolished. The discussion on this amendment summarises their whole attitude. They sought to present the Seanad as being the guardian of certain fundamental rights of the citizens and have tried to make the case that we are removing the Seanad out of the way in order to tamper with the fundamental rights of the citizens. Such a case is perfectly absurd. I do not think it is really believed in by the Opposition. I believe it is only being put forward for another object, which emanated from Deputy O'Higgins's speech more clearly than from some of the others, and that is to create an atmosphere of suggestion or suspicion that we are really out for despotism.

[1202] Deputy O'Sullivan talked about the fact that in every Constitution you have safeguards of this kind against precipitate action on the part of a popular Assembly; that you had checks and safeguards in order to protect these fundamental rights. The Deputy was particularly cautious, as the President pointed out, not to give us the benefit of his knowledge of these Constitutions or to say where they have been found so valuable and so essential. He was particularly careful to avoid reference to developments on the Continent, where at present it is not the unicameral system which is coming into favour but the one-man system, a system which, as far as we can see, is rather popular with certain of the leaders of the Opposition; a system by which legislation does not have to pass through even a public assembly. Legislation by decree is now popular in some of what, I am sure, Deputy O'Sullivan would call the highly-civilised States.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  We are getting very close to it here.

The Attorney-General:  This ramp of putting the Seanad forward as being the guardian of the liberties of the subject is so absurd and ridiculous that I do not believe it appeals even to the most ordinary man in the street. Deputy Cosgrave opened with a disquisition on the history of the creation of these institutions here and said they were brought into being after a Constituent Assembly. I agree with a good deal of what he said about that Assembly. It went about its work with a great deal of care and, so far as time allowed, gave as close attention to the writing of this Constitution as could be expected. It cannot, however, be lost sight of that rather a large section of the people were not represented there. I know Deputy Cosgrave will say that that was their own fault, but the fact was that this Constituent Assembly, so called, did not represent the whole of the people of this country. He then pointed out that they brought in these several legislative institutions as we have them to-day and that one of these was the Seanad. He did not, however, [1203] travel over the ten years of the existence of the Seanad and show where it preserved those fundamental Articles which Deputy Costello has embodied in his amendment. I think we have only to glance at Article II A of the Constitution — Constitution (Amendment No. 17) Act—to see the effect of that Article as embodied in the Constitution. Section 2 of that Act says:

“Article III and every subsequent Article of this Constitution shall be read and construed subject to the provisions of this Article, and in the case of any inconsistency between this Article and the said Article III or any subsequent Article, this Article shall prevail.”

It is generally thought that the reason why this Constitution (Amendment No. 17) Act was written into the Constitution was because the law officers of the day advised that unless it was so written into the Constitution there were several sections of it that might be held to be in conflict with several of the very precious Articles that Deputy Costello is now trying to protect. The Seanad, which was the guardian of these fundamental Articles hitherto, and against whose removal we must, hot-foot, make provision, as some of them expect to be swept away, accepted that special section without having troubled itself to ask what were the particular Articles they were interfering with there. I cannot call to mind any instance in which the Seanad displayed its absolute regard for the fundamental rights of the people as embodied in the fundamental Articles of the Constitution. I waited to have that pointed out; it would be relevant. What we heard was not relevant. This particular amendment does not properly find its place in this Bill, which is a Bill to remove the Seanad.

Deputy Costello says we want to remove the Seanad because it refused to pass the Blue Shirt Bill, and there was a hint that the method by which the Seanad was asked to act was unconstitutional, and that the Seanad rejected the Blue Shirt Bill because of its sense of duty to the people whose [1204] fundamental rights were embodied in the Constitution. The Blue Shirt Bill was a piece of ordinary legislation. If it interfered with any of the Articles of the Constitution, set out in this amendment, the courts would have stepped in, so that the Seanad's interference was quite unnecessary. We did not write in the Blue Shirt Bill as part and parcel of the Constitution and I think a case has yet to be made in favour of this amendment. Deputy Costello said he listened to the arguments from these benches with amusement.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  I got the kick out of it that I expected.

The Attorney-General:  I have yet to hear any instance where the Seanad interfered, in the past, to protect any of the rights embodied in these fundamental Articles of the Constitution. As I said, it is a question of analysing these various Articles, and having them carefully considered and having them, with the experience at our disposal, and with the experience at their disposal, carefully phrased before being put into a place apart. That method of dealing with the Articles is quite reasonable and worthy of consideration. But to say because the Seanad is going, we must, as an amendment of the Bill to abolish the Seanad, put these Articles in a special place, so that they cannot be altered except as a result of a general election, is, to my mind, a matter absolutely without the slightest argument to support it.

Deputy O'Higgins and Deputy O'Sullivan rambled into their usual phrase, that this is an attempt to establish a dictatorship. I do not think that this kind of attack, from the benches opposite, during the last two years cuts any ice. I do not suppose one man in a thousand, in the country, accepts the view that the action of the Government is heading towards dictatorship, while there are many thousands of people who firmly believe that dictatorship is very much in favour with the Opposition. That their action with regard to the Seanad in relation to the Blue Shirt Bill was [1205] more than dictatorial is quite clear. When the Bill was introduced the leader of the Party opposite told the Seanad not to pass it and they did not do so. If that is not dictatorship, I do not know what it is. It is manifest, from this debate, that the Seanad was very obedient towards its masters, the Party opposite, when they were in office. But the moment we get into office it proceeds to hamper, and to impede us, and to set up, in effect, an Opposition dictatorship in this country. That is one of the reasons why this Bill has been introduced. And lest I should be misrepresented, and misunderstood again, I might say, I am quite prepared to admit there are certain fundamental Articles in this Constitution which I do not believe for a moment there is any fear any Parliament representing the Irish people would tamper with. But lest there might be such fears it might be well to consider them, and whether they should not be treated in a special way and in a particular place. But I object to this Bill being the medium by which this is to be effected.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  May I conclude the debate now?

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  The Deputy is not entitled to speak twice.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  I thought you, Sir, ruled that having moved an amendment a Deputy could later reply.

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  No. When President de Valera offered himself to speak I, in mistake, used the phrase “the President to conclude.” Deputy Cosgrave got up afterwards, to assert his right to speak, as he had a right to do. I said then that I should not have called upon the President to conclude. It was a mistake on my part. Standing Order 38 is conclusive with regard to a Deputy speaking twice. It says: “No Deputy shall be entitled to speak twice upon the same motion except to close the debate upon a motion of which he was the proposer.” The Deputy, in this instance, moved an amendment.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  Does not an amendment that was moved become a motion, [1206] and has not the mover of it the right to reply?

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  This is an amendment to a section of the Bill. It is not a motion, as indicated by the Standing Order.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  I do not for a moment wish, in any way, to question your ruling; but I would point out the obvious inconvenience if I am not to be allowed to reply. There were a number of arguments put forward by the President and the Attorney-General to which I have had no opportunity of replying.

An Leas-Cheann Comhairle: Information on Patrick Hogan  Zoom on Patrick Hogan  The Deputy will have an opportunity when the question is put “That the Bill be received for final consideration” and also on the question “That the Bill do now pass.” He will be able to work off a good deal on those occasions.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  With great respect, I am afraid I would be stopped.

An Ceann Comhairle resumed the Chair.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  There is a point of order that I should like to put to you, Sir. Standing Order 36 says: “A Deputy desiring to speak shall rise in his place”——

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  A Chinn Comhairle, may I ask——

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  I have not yet heard the point of order that is being raised.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  Standing Order 38 says: “No Deputy shall be entitled to speak twice upon the same motion, except to close the debate on a motion of which he was the proposer; but a Deputy is not precluded from speaking upon an amendment by reason of having spoken upon the original motion or upon any other amendment: Provided that no Deputy shall speak twice upon the same amendment.” Now from the words of the amendment before the Chair——

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  On a point of order, the Leas-Cheann Comhairle has given a ruling on this.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I am raising a point of order, and I do not think it is in [1207] order for a Deputy, or even for a Minister, to interrupt when a point of order is being raised. I have not put the point of order yet. Deputy Costello moved an amendment standing in his name, and in the course of the discussion the Leas-Cheann Comhairle called upon the President to wind up the debate. I then intervened and said that the motion had been moved by Deputy Costello and that it was he who should close the debate. The President spoke, and as the debate was about to conclude Deputy Costello rose. I drew the Leas-Cheann Comhairle's attention to Standing Order 38, which says: “No Deputy shall be entitled to speak twice upon the same motion, except to close the debate upon a motion of which he was the proposer; but a Deputy is not precluded from speaking on an amendment by reason of having spoken upon the original motion or upon any other amendment.” The point of order that I want to put to the Chair is: will Deputy Costello be entitled to speak on Article L, when the question on amendment No. 1 is decided, if he is not entitled to speak now? In other words, when the amendment is decided and if it is beaten, has Deputy Costello then got the right to speak on the substantive motion on Article L?

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  I think it is only fair that I should say, in connection with this point of order, that the Leas-Cheann Comhairle had just given a ruling when the Ceann Comhairle entered the Chamber. I think it is hardly fair to the Chair not to mention that fact: that a ruling had actually been given, and then to put the question again as a point of order.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  May I say that the point of order made by the Leader of the Opposition was based on the [1208] assumption of the correctness of the Leas-Cheann Comhairle's ruling?

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  A ruling given by another occupant of the Chair should not be submitted to the Ceann Comhairle. The matter before the House is amendment No. 1, which was moved by Deputy Costello, and on which the Deputy has no right to speak twice.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  That was the ruling.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  That is in accord with the Standing Orders. When that amendment has been decided, amendment No. 2 will be taken and then amendment No. 3. The main motion, on which the President has the right to conclude, is: That the Bill be received for final consideration. The Deputy, of course, may speak to that motion when the amendments on the Order Paper have been disposed of.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  That is not my point. A certain discussion was taking place on amendment No. 1. Will Deputy Costello be in order in addressing himself on the main question to his arguments, or are they disposed of? That is the point that I want to put. Will it be in order for the Deputy to speak subsequently not on the amendment but on the motion?

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The Chair will consider what Deputy Costello has to say when the Report is being considered by the House. An amendment is now before the House and if it is disposed of by a vote of the House then it certainly cannot be again discussed to-day or indeed at any stage of the Bill.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  We have an amendment now to Article L. Can we discuss Article L when this amendment is disposed of?

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  Certainly not.

Amendment put.

Alton, Ernest Henry.
Anthony, Richard.
Beckett, James Walter.
Bennett, George Cecil.
Broderick, William Joseph.
Brodrick, Seán. [1209]Fagan, Charles.
Fitzgerald, Desmond.
Fitzgerald-Kenney, James.
Good, John.
Haslett, Alexander.
Keating, John.
Lynch, Finian.
McDonogh, Martin.
McFadden, Michael Og.
McGilligan, Patrick.
McGovern, Patrick.
McGuire, James Ivan.
Morrisroe, James.
Cosgrave, William T.
Costello, John Aloysius.
Davis, Michael.
Dockrell, Henry Morgan.
Doyle, Peadar S.
Esmonde, Osmond Grattan. [1210]Mulcahy, Richard.
Murphy, James Edward.
Nally, Martin.
O'Donovan, Timothy Joseph.
O'Higgins, Thomas Francis.
O'Neill, Eamonn.
O'Reilly, John Joseph.
O'Sullivan, John Marcus.
Redmond, Bridget Mary.
Rogers, Patrick James.
Thrift, William Edward.
Wall, Nicholas.

Bartley, Gerald.
Beegan, Patrick.
Blaney, Neal.
Boland, Patrick.
Brady, Brian.
Brady, Seán.
Breen, Daniel.
Browne, William Frazer.
Concannon, Helena.
Corry, Martin John.
Crowley, Timothy.
Derrig, Thomas.
De Valera, Eamon.
Doherty, Hugh.
Donnelly, Eamon.
Dowdall, Thomas P.
Fogarty, Andrew.
Gibbons, Seán.
Goulding, John.
Harris, Thomas.
Hayes, Seán.
Hogan, Patrick (Clare).
Jordan, Stephen.
Keely, Séamus P.
Kehoe, Patrick.
Kelly, James Patrick.
Kelly, Thomas.
Kennedy, Michael Joseph.
Kissane, Eamonn.
Lemass, Seán F.
Little, Patrick John.
MacEntee, Seán.
Maguire, Ben.
Maguire, Conor Alexander.
Moore, Séamus.
Moylan, Seán.
O'Briain, Donnchadh.
O'Doherty, Joseph.
O'Dowd, Patrick.
O'Grady, Seán.
O'Reilly, Matthew.
Pattison, James P.
Pearse, Margaret Mary.
Rice, Edward.
Ruttledge, Patrick Joseph.
Ryan, James.
Ryan, Robert.
Sheridan, Michael.
Smith, Patrick.
Traynor, Oscar.
Walsh, Richard.
Ward, Francis C.

Amendment declared lost.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  I presume amendments Nos. 2 and 3 will be discussed together.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  I am not so sure of that, Sir.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  It is for the House to decide.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  May I enter an objection to the proposal to discuss them together?

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  Amendment No. 2.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  I move amendment No. 2:—

2. In page 3, Schedule, Part II, to delete the portion of the second column relating to Article LXIII, and substitute the following:—

The deletion of the words “on resolutions passed by Dáil Eireann and Seanad Eireann,” and the substitution therefor of the words “by a resolution of Dáil Eireann for the passing of which not less than four-sevenths (exclusive of the Chairman or presiding member) of the full membership of Dáil Eireann shall have voted”; the addition at the end of the Article of the following sentence “Notwithstanding anything contained in any other Article of this Constitution, a Bill for legislation to amend this Article in relation to the passing of the said resolution shall not be introduced in Dáil Eireann unless or until the amendment proposed by such Bill has been approved by a resolution of Dáil [1211] Eireann for the passing of which not less than four-sevenths (exclusive of the Chairman or presiding member) of the full membership of Dáil Eireann shall have voted.”

During the discussion on the Committee Stage fears were expressed by the Opposition that, with the removal of the Seanad, there was a danger that the independence of the Comptroller and Auditor-General might somehow be weakened. I do not think that these fears are at all well grounded. I think that the representatives of the people realise their duties sufficiently and realise that it is in their interest also that there should be an independent officer to examine the accounts and to see that appropriations made by the House are spent in accordance with the wishes of the House. As, however, fears were expressed, I thought it might be possible to go a certain distance to meet them. We have gone a distance sufficient I think to remove any genuine fears that might exist. Under proportional representation a majority of four-sevenths is never likely to be achieved by a single Party and the fears to which expression were given that a single Party might, in some Party interest or for some Party reason, wish to get rid of the Comptroller and Auditor-General I think were ill-founded. I think that that cannot possibly occur. It is very unlikely in any case that such a thing would occur. A majority of four-sevenths is an almost impossible majority for any Party under the system of proportional representation. When I mentioned that before I was told that I was thinking of Parties but it was the Opposition who were thinking of the majority Party, as they call it.

I have been thinking altogether in terms of the elected representatives of the people sitting here. Before the Comptroller and Auditor-General could be removed a motion would have to be brought here, and a reason would have to be stated in public why he was being removed. I do not think it is at all likely, if there are not grounds of incompetency or misconduct, patent [1212] to all, any Party would ask its members to aid in removing the Comptroller and Auditor-General. The first part of the amendment will secure that a motion of this sort, to remove the Comptroller and Auditor-General, cannot take effect unless it is supported by four-sevenths of the full membership of the House. With the present numbers in the House it would mean that 88 members would have to vote for such a motion. The second part of the amendment seeks to meet a view that was put forward by Deputy McGilligan. He said that anything we might do, such as in the earlier part of the amendment, was of very little use, inasmuch as a motion could be brought in here to change that Article, and to change it by a simple majority. Therefore, if you could get rid of the necessity of having four-sevenths, by a simple majority, there was very little use in putting in that safeguard. This clause makes it impossible to change that Article by a simple four-sevenths majority. Consequently, this Article is intended to go as far as we think it at all reasonable, to meet the views put forward on the Committee Stage. The second part is a reference to the Comptroller and Auditor-General.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  I have always objected in a discussion of these matters in fractions. Fractions are not the essence of the matter. Does any amendment spoken of prevent a simple majority of another House cutting loose and wiping out the judges? I have heard no amendment spoken of.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  This refers to the Comptroller and Auditor-General.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  This does not prevent his abolition by a majority vote hereafter. Let me put this analogy for the purpose of getting a distinction. Supposing the Government of the moment introduces a tariff and puts it into a Bill, at the end of which it says: “This tariff shall not be removed except with a four-sevenths majority.” Would that bind a new House? Would it bind the present Government? Obviously not. A simple majority can repeal a clause which necessitates a four-sevenths majority to do anything. [1213] What is the difference? What greater force, or sanctity, is there in the four-sevenths majority in the case of the Comptroller and Auditor-General than in, say, applying any process of ordinary legislation to a tariff? Do not tell me there is, because it is in the Constitution. We have seen the Constitution amended, not in accordance with the Constitution. Supposing Constitution (Amendment No. 24) Bill is passed containing that clause, and the Government, a year hence, says: “We cannot remove the Comptroller and Auditor-General,” and it has only a single-member majority in the House, the Government that wants to remove him may say to the draftsman some day: “Draft whatever legislation is necessary to get rid of the Comptroller and Auditor-General.” The draftsman may come back to the Government that wants that legislation, and say: “You cannot do that because, say, Constitution (Amendment No. 50) Bill, of 1934, stops you.” The Government will immediately give an order to repeal that Bill. What is to prevent them doing so? Will the clause in Constitution (Amendment No. 50) Bill prevent a repeal Act being passed by a simple majority? If so, is the Dáil being put in the position of extra sovereignty over another Dáil?

This Dáil does not pretend to be a Constituent Assembly. A Constituent Assembly has powers that an ordinary Parliament will not have. What is the force in this Dáil which a new Dáil will not be able, by a simple majority, to repeal? If what I say is true, we are back, without any discussion of fractions, to what I have always stated in relation to the Comptroller and Auditor-General; that once the Constitution is interfered with, a simple majority of the House can get him removed from office. No argument that 80, 85 or 90 must vote for his removal or vote for legislation to bring about the change, can have any effect. A simple majority in a new House after this Bill is through can repeal, notwithstanding the supposed restrictive clause in the Bill, unless in some way this House can get itself into the position of being a Constituent Assembly. The next one can do [1214] that too. If this House could be a Constituent Assembly it could operate in relation to tariff legislation as with the Comptroller and Auditor-General. No one can tell me, and hope to have it held, that a Government can pass an Act in relation to the Dáil and put into it some clause that cannot be repealed except it secures a nine-tenths majority. When that Bill becomes a statute it is open to the ordinary method of removal. A majority can repeal, and once repeal is effected, whatever clauses are in it cease to have effect. There was one Constituent Assembly and it passed a Constitution. It may afterwards have to be decided in the courts whether the amendments that have taken place have been in accord with what that Constituent Assembly did. If not, they are bound to be declared null and void. But this House does not pretend to be a Constituent Assembly in regard to things that the Dáil that preceded it did. It cannot bind by any pretence some majority to give effect to proposals before legislation is introduced to implement these proposals. It cannot have any effect by way of restrictions. Any talk about fractions is unreal. If not unreal, it is definitely put up for the purposes of deceit. A Government which controls a majority of the House can hereafter take the necessary steps, first, by repealing whatever Bill is there and having repealed it, getting the situation back to what it is now. It can proceed by a majority and say that the powers of the Comptroller and Auditor-General are to be varied or that he shall be removed, no question of fractions arising.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  I felt like pulling my colleague down when he was disclosing the weakness of the Government's case in this matter, because that was for the courts. I had intended, and would have preferred, to keep that up my sleeve for the proper occasion, if and when required. I do not propose to enter into a legal controversy as to whether or not the President's proposal in this amendment is going to do what he thinks. Personally I believe it does not. However, that is another day's work. Deputy McGilligan said [1215] that the discussion about fractions is unreal. It may be unreal; it is certainly very amusing. I referred during the Committee Stage, when dealing with this question or with the judges, to the fraction of a Deputy. At the time I had not done the necessary sum in arithmetic. I did it a few moments ago and I find I was precisely right, because we are fighting about the one and six-seventh part of a Deputy. The President's proposition on the last occasion in this connection worked out at 85 members. His present proposal works out at 86 and the six-seventh part of a member, so that, in order to remove a judge, 86 votes and the six-seventh part of a vote must be obtained in this House. When the President says that, if his proposal is carried, it will be practically impossible to remove the Comptroller and Auditor-General, I agree, not for the reason he gives but for the reason that it will be impossible to get the six-seventh part of a Deputy's [1216] vote. I do not know how it is going to be done, but that is the President's proposal. I do not know if our old friend omega will come in and work out the fraction. Perhaps the theorem one plus omega plus omega squared will apply and the result be equal to the value of this proposal by the President.

The Attorney-General:  I agree with Deputy Costello that it would have been much better for Deputy McGilligan to have left over his subtle argument until the occasion arose. I do not agree that the court will hold with his interpretation. It is the intention of the President to secure that the figure in that Article shall not be altered save in the manner provided and on a resolution passed by that majority. The court would in my opinion hold that any legislation which attempted to do it otherwise would be ineffective.

Question put: “That the amendment be made.”

Bartley, Gerald.
Beegan, Patrick.
Blaney, Neal.
Boland, Patrick.
Brady, Brian.
Brady, Seán.
Breen, Daniel.
Browne, William Frazer.
Concannon, Helena.
Corry, Martin John.
Crowley, Timothy.
Derrig, Thomas.
De Valera, Eamon.
Doherty, Hugh.
Donnelly, Eamon.
Dowdall, Thomas P.
Fogarty, Andrew.
Gibbons, Seán.
Goulding, John.
Harris, Thomas.
Hogan, Patrick (Clare).
Jordan, Stephen.
Keely, Séamus P.
Kehoe, Patrick.
Kelly, James Patrick.
Kelly, Thomas.
Kennedy, Michael Joseph.
Kissane, Eamonn.
Lemass, Seán F.
Little, Patrick John.
MacEntee, Seán.
Maguire, Ben.
Maguire, Conor Alexander.
Moore, Seámus.
Moylan, Seán.
O'Briain, Donnchadh.
O'Doherty, Joseph.
O'Grady, Seán.
O'Reilly, Matthew.
Pattison, James P.
Pearse, Margaret Mary.
Rice, Edward.
Ruttledge, Patrick Joseph.
Ryan, Robert.
Sheridan, Michael.
Smith, Patrick.
Traynor, Oscar.
Ward, Francis C.

Alton, Ernest Henry.
Anthony, Richard.
Beckett, James Walter.
Bennett, George Cecil.
Broderick, William Joseph.
Broderick, Seán.
Cosgrave, William T.
Costello, John Aloysius.
Curran, Richard. [1217]Lynch, Finian.
McDonogh, Martin.
McFadden, Michael Og.
McGilligan, Patrick.
McGovern, Patrick.
McGuire, James Ivan.
McMenamin, Daniel.
Mulcahy, Richard.
Murphy, James Edward.
Nally, Martin.
Davis, Michael.
Dockrell, Henry Morgan.
Doyle, Peadar S.
Esmonde, Osmond Grattan.
Fagan, Charles.
Fitzgerald, Desmond.
Fitzgerald-Kenney, James.
Good, John.
Keating, John. [1218]O'Donovan, Timothy Joseph.
O'Higgins, Thomas Francis.
O'Neill, Eamonn.
O'Reilly, John Joseph.
O'Sullivan, John Marcus.
Redmond, Bridget Mary.
Rogers, Patrick James.
Thrift, William Edward.
Wall, Nicholas.

Question declared carried.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  I move amendment No. 3:—

In page 3, Schedule, Part II, to delete the portion of the second column relating to Article LXVIII, and substitute the following:—

The deletion of the words “by resolutions passed by both Dáil Eireann and Seanad Eireann,” and the substitution therefor of the words “by a resolution of Dáil Eireann for the passing of which not less than four-sevenths (exclusive of the Chairman or presiding member) of the full membership of Dáil Eireann shall have voted”; the addition at the end of the Article of the following sentence “Notwithstanding anything contained in any other Article of this Constitution a Bill for legislation to amend this Article in relation to the passing of the said resolution shall not be introduced in Dáil Eireann unless or until the amendment proposed by such Bill has been approved by a resolution of Dáil Eireann for the passing of which not less than four-sevenths (exclusive of the Chairman or presiding member) of the full membership of Dáil Eireann shall have voted.”

The remarks I will have to make on this amendment are precisely those I made on the previous one. Deputy McGilligan's point is rather interesting, and I want to see if I can follow it and ascertain what it exactly means. As far as I can gather from his remarks, his view is something like this: that there was a certain Constituent Assembly which had a special character. It did certain things by laying down a Constitution, and it provided in it how that Constitution might be altered. It did provide that the alteration of the Constitution within a certain period of time might be made by way of ordinary legislation. That implied that within that period each particular Parliament was, in fact, a sovereign Assembly in that regard. and it might be regarded, inasmuch as it could change any particular Article of the Constitution, as a continuing Constituent Assembly. If that be so, I take it his argument is that we can do any act here within the period prescribed, continuing to any succeeding Dáil the right which we claim for ourselves and that what we would bind they could claim that they could loose, and that, therefore, it is in vain for us to attempt to do anything having any permanent character with regard to the Constitution. I am not certain that I fully apprehend his argument, but that is what I understand from it.

Therefore, I take it that the conclusion he wishes us to draw is that any effort of ours to bind within the period is vain. I take it that he will go further and say on that account that the only check that could possibly be would be a check in the way of legislation, the check of the Second House and that in removing that check we have, in fact, removed from the Constitution any power of any fundamental stability which it might secure. There are some points in the arguments which I do not think are sound—but supposing we assume it is correct I differ fundamentally from the members on the opposite side with regard to the real checking power of the Seanad. The Seanad has proved several times that it could not be relied upon to be a check in the case where the majority here was of the same political view as the majority in the Seanad. It is not a check.

The next thing that occurs to me is [1219] if the Deputy's argument is fundamentally sound, then his own amendment and the other amendments are open to the same defect. Finally, we have to ask ourselves is it or is it not right that there should be power and a continuing power to change the Constitution? For a moment to dream of having a cast-iron Constitution which could not be changed would be heading straight for revolution. What you want is to have reasonable security that changes will not be made without proper consideration; that these changes cannot be arbitrarily made and that the proposals will have a fair discussion. Fundamentally, I think that is provided for in a Chamber like this which is constituted of representatives of the people and particularly so when these representatives are chosen by proportional representation. In fact I believe it would be a danger to try to check the representatives of the people from being able, when there was a need for it, to carry out what they were satisfied was the will of the people. A Referendum, as I have already indicated, is to my mind a much better way of getting the people's opinion in regard to a special matter than a general election. But if we are in the position that Deputy McGilligan would suggest, then it is quite clear that there is no use in putting into this Constitution any proposal for a Referendum or for a general election, because within the period it will be held that each successive Dáil is sovereign.

From a legal point of view, in so far as I can presume to understand the matter, I do not know where a Constituent Assembly derives its authority from except directly from the people. If, for instance, we wanted in a short period to get this Constitution revised and a new Constitution secured, the natural way of doing it would be to get an Assembly for that purpose elected directly by the people. It is clear that the Parliament of the time would arrange for the type of Assembly and how it was to be elected and I cannot see how, if it so chose, you could prevent any Parliament from constituting itself, if need be, into a Constituent Assembly. If we follow the [1220] line that Deputy McGilligan has indicated, we would have stability nowhere. We would simply get to the position that each Parliament is sovereign, which is the position, of course, where there are no written Constitutions. Now, in this Constitution we have the courts established for the purpose of deciding whether legislation is in accordance with it or not; but the courts themselves are set up, I take it, in accordance with the fundamental law which was decided on by the Constituent Assembly itself.

So far as this amendment is concerned, whether it gives greater security or not depends upon whether we are going to assume that the representatives of the people in a National Assembly, an Assembly like this, are going to act in a reasonable manner or not. I think there is no use in attempting to legislate for an Assembly if we are going to start off with the idea that it is going to be capricious, that its members will have no sense of responsibility and that they are simply going to run amok. I move the amendment, at any rate, as giving the same security that any other Article of the Constitution would give. It will be the Constitutional position when it is passed that to remove the judges in this case will require a majority of four-sevenths of the House and that Article itself could not be changed without a similar majority in the Dáil.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  It is interesting to note that the arguments which were addressed to the last amendment, and which were criticised by the Attorney-General as being proper for a court but not for this House, have now brought forth this reasoning by the President. The Attorney-General held the view that this House, although it is a deliberative Assembly of the people and is supposed to see that laws do not go out for examination by the judges in a rubbishy or foolish form, is not the proper place in which to discuss amendments. We are, according to him, to let the courts decide hereafter. I am glad to see that that point of view has not been approved of. The President, as usual, in his attempt to reduce contentions [1221] to the point of absurdity, gets himself into a tangle. Are we going to legislate, he asks, on the assumption that the representatives of the people will act capriciously? If we are not, why not keep the simple majority in the House to do everything? I would not have voted against the last amendment if I thought it was any safeguard, if it even meant anything, or if it was going to be taken as an agreement by the Government that, as long as they lasted in this Dáil, they would not move except with the consent of the four-sevenths. But it does not bind them.

Are you going to assume that the people will act capriciously? I suppose that is intended to draw assent from me to this proposition, that we must assume the people's representatives will act properly. On that assumption we should not have any of these checks at all. The President says that if you tie the people up in a cast-iron Constitution it is a headline for revolution. Let us suppose that a group hereafter gets four people short of the four-sevenths of the House and cannot get aid from any other Party. They have three elections and they always come back four short of the four-sevenths majority. They find themselves tied up in this cast-iron business with regard to judges. Is that a headline for revolution? If you have to get even one more than the majority, then the majority may rage and fret. You increase agitation towards revolution by imposing on them the necessity to draw more and more support than the simple majority. If we are to take these theoretical arguments in the abstract and if we are to say that the people will always act honestly and that there is going to be no caprice about them, then on that basis there is no reason to insult the people's representatives by saying that they require one more than the majority of the House.

As to the cast-iron Constitution leading to revolution, there are quite a number of Houses that have cast-iron Constitutions and they have passed pieces of legislation and the aftermath showed that that legislation [1222] had speedily become unpopular. But it took years and years to get it repealed by way of Constitutional amendment. America provides a glaring example of that. Can anybody say it was a headline for revolution? It brought about such a disregard for the law that even people who thought there was some social value attached to a certain social law saw in the end that the balance was in favour of letting it go and they favoured a repeal. In any civilised State with a traditional Government it is an insult to say that a cast-iron Constitution leads to revolution. Apparently the four-sevenths majority is not cast-iron. The whole thing is simply absurd.

I do not think there is any choice in this matter as between saying that the simple majority has sway and that sway ought to extend to everything in the State or else saying that you do recognise some value in checks and balances and you think this can be put in without wanting to cast any insult at the people's representatives or saying that they are going to act capriciously. Then we come to debate what is the proper check. I admit, as far as I am concerned, that once the framework of the original Constitution, with every Article of it considered—not amendments to it, but every Article of it—once that is broken there is no possible check. In the former situation the check, whatever it was worth, was the Second House. Once that goes I think that there is no possible check and you are at the mercy of the majority in the Dáil for everything.

The President thinks that the Seanad was no check. His argument was that while the Seanad had the same political view as the majority in the Dáil, then it did not act as a check. That is a specious argument. It is a false argument. The check is this: if you have another House, not elected in the same way as this House is, and which has, as far as its membership goes, a different period for which they are elected, and whose members have not to submit themselves for election around about the same time, and who [1223] will be discussing matters in a different atmosphere and, therefore, will not be swayed by the same political considerations, and that constituents will not have the same grievances against them as they would have against the members of this House, then they will have to bring to the consideration of a Constitutional amendment different considerations from what you will get brought to the examination of the same point here. In fact, the Seanad was a good check. Merely to say that, in the main, they agreed with legislation passed by the preceding Government does not nullify the argument I have used—that it was capable of being a good check, and, in fact, was a check.

If we really have any appreciation of democratic government, or that government is supposed to be ruled in these times by an appeal to people's reason, and that legislation is going to be passed after deliberation, examination, the clash of argument, and the impact of mind on mind, surely there is some good in getting a second body freed from the particular affiliations and ties of constituents—in having a second body before whom a Government must go with its proposals, even though the members of that body when starting off, let us say, were deliberately chosen from amongst the people who at one time had the same views as a Government that existed at one particular period. Merely to go from one House to another, to get a new group of men after a period of delay and in a different atmosphere— particularly in a fundamental and vital matter such as the liberty of the subject, the right of freedom of speech, the removal of the judges or the removal of the Comptroller and Auditor-General—if, as I say, you got a body appointed in a different way in the main, as they are, and chosen for different reasons from those for which this House is chosen, you certainly have at least some new point of view brought to bear on the examination of a problem. There will be a different atmosphere there. Different arguments will be used and different considerations will apply. Even though it [1224] may not be a complete check, it is better than having a majority here ruling for everything.

We are told, in opposition to that, or at least as partly aiming at the argument that this House ought to have power—the President said it— that once you have proportional representation and a House and Government elected by it, then you get a better representation, a better spread of the democratic idea, and a better exposition of democracy through the members, and there is no necessity to trouble. With proportional representation—different systems of proportional representation—that might be a good and potent argument, but there is a Bill going through at the moment which seeks, in the main, to nullify proportional representation. Its effect, in the main, will be contrary to the best schemes of proportional representation, the schemes judged to be the best of those that give a better representation to certain groups, of numbers and of standing in a constituency, but which groups are not able to get a majority over the constituency as a whole. We are weakening that idea, and any House elected under the new Constituency Bill will, definitely, less well represent the proportional representation idea than, say, this House.

I want to admit now, with regard to any amendment that is being put now, amongst others the one to which I put my own name—the first one here—that it could have been wiped out the day after it was passed by a simple majority of the House, and that it certainly did not bind a new House. I want an answer to the point I raised along these lines. Will it be contended that an ordinary piece of legislation— I am not referring to a matter of vital importance such as an amendment of the Constitution, but an ordinary piece of legislation like, say, the imposition of a tariff—will it be contended that that piece of legislation, if it contained a clause like the proviso here, would not be subject to repeal except by a four-sevenths majority? Is it contended that it would be possible to pass an ordinary tariff measure and to bind succeeding Dála in such a way that they could not repeal that [1225] measures unless they obtained a four-sevenths majority? I am referring here only to an ordinary piece of legislation. If that cannot be contended in relation to ordinary legislation, can it be contended in relation to a Constitutional amendment passed by a body which does not pretend to be any better than the Dáil which preceded it or than the Dáil which will succeed it and which does not arrogate to itself the title of Constituent Assembly? Is there any difference between a piece of legislation brought in to amend the Constitution by an ordinary Bill and a piece of legislation, say, to fix a tariff? Is there any answer to the contention that, if any of those purported to prevent their own repeal by the requirement of the four-sevenths majority, what they purported to do is impossible to carry out? In fact, this pretence can be shown up to be a pretence by a simple majority of the succeeding Dáil, or of the same Dáil, a week later.

As to the Constitution, the President says that he does not know, from a legal point of view, whence a Constituent Assembly derives its authority. Surely, when a President of an Assembly moves to amend a Constitution, you would think that it would come into his head, as one of the first considerations, to ask how did that come in first. Would he not ask, what body passed it; did it attempt to bind its successors; what force had it to bind them, and where did it get that force? What distinguishes a Constituent Assembly from any other Parliament purporting to be sovereign? The President says, frankly, that he does not know.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  Neither does the Deputy.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  At any rate, I have deliberated over the matter and have given an expression of opinion.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  That is quite a different thing.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  I do not confess to a political agnosticism, as the President does. I do hold that there was a Constituent Assembly, and that it, [1226] having passed a particular Constitution, and submitted it to the people, gave that Constitution a certain sanctity. A judge in the courts recently has used phrases to that effect. This Constitution was compared, I think, by two judges recently to a Social Contract of the Rousseau type. They regarded it as a definite contract struck between the people at the time, no Article of it being changed except in accordance with its own provisions.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  That point of view would not hold very long.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  And I am sure if it was found to be held by a majority of the judges, the judges would not stand very long, and that is what we are against. Once you get going on this high-road, that the representatives of the people are always right, and, no matter what mandate they get, as the President said, from the people, he is entitled, during the course of a Dáil, to discover and decide on what the people are thinking of at that time, you must crush everything out of your way and sweep everything aside. But it was to prevent that sort of thing that constituent assemblies came into being and that constitutions, with some more force than ordinary legislation, were recognised as normal things throughout the world. However, I think there was a constituent assembly, called definitely for a particular purpose and, that having achieved its purpose, the Constitution, as such, was before the people at an election, and a Government came back and carried on that Constitution. That Constitution lasted and every clause in it — not an amended clause in it, but every clause; the bargain, as it was then—and if it is to be regarded as a bargain at all, the bargain idea must pervade every clause of it. The President is going to be definitely up against that either now in this amendment, or hereafter on actions in the court, and it is about time that the people who are chopping and changing Constitutions should begin to think of what is the meaning of constituent assemblies, how they arise and what force their decrees have, over and above the tariff legislation which this House may pass.

[1227] Swerving again to this idea of majority government, the President says he does not see how any Parliament could be prevented from calling itself a Constituent Assembly. That, again, is a point of view which is the expression of the man who is whole-heartedly in favour of the majority of the people, at a particular time, ruling and ruling completely and comprehensively. Of course, that is what is here. The President is pretending, by his amendment, that that is not the situation. I am only arguing that that argument is worth nothing, and if the President found— I hold that his remark is rather appropriate to my argument—that the judges felt that the old Constitution had more force and effect than what he wants it to be given, I am not sure that those judges would be allowed to have much force and effect for long afterwards. The President has a way of removing them under that, and it is only folly to pretend that he would require, or feels that he requires, or would feel that he would require, a four-sevenths majority before he would move against them. The President will come down then, completely inebriated with the idea of majority rule, and we will have a lecture that, if majority rule was not allowed to have sway, we should be heading for revolution, and if the judges were blocking the opinion of the people, and if some sort of strait-waistcoat were put on the people that they could not get out of, the judges had better be sacrificed rather than that the people should be sacrificed.

I think that, on the whole, you come back definitely to this point, that he recognises that there is no difference between this piece of legislation and an ordinary piece of tariff legislation. Pretending to have a four-sevenths requirement has only to be mentioned to be dismissed as ludicrous. The only other way in which that can be justified is by pretending that this is a constituent assembly. I do not think that pretence can be upheld, and that being so, no mere similar amendment with reference to the Comptroller and Auditor-General is worth anything. [1228] Some speaker said that it was an expression of a point of view. So it is, for the time being, but the President's points of view are very fleeting. They change according to the circumstances, and they particularly change according to his view of what being a representative of the majority of the people at a particular time entitles him to do, and so far as I have been able to find out, that has not meant any check. It does not mean that he recognises any check, and it is absurd, in face of all the President's past performances, to pretend to the people that this is intended to be a check. It is only intended as a pretence.

Amendment put and declared carried.

Question proposed: “That the Bill, as amended, be received for final consideration.”

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  On that question, I wish to make just one or two observations, mainly in reply to some of the points raised by the President and the Attorney-General in the course of the discussion on the amendment which stood in Deputy Cosgrave's and my name. I think this Bill ought not to pass for a very large variety of reasons. I propose to deal with only one reason at this stage and that reason is that, in the Bill as it stands, at the moment, there are no safeguards for any of the fundamental rights which are supposed to be guaranteed to the people by the various Articles of the Constitution which are set forth in amendment No. 1 on the Order Paper to-day. The President said, in the course of the discussion on amendment No. 1, that he agreed that there were certain fundamental matters in the Constitution which ought to be recognised as such and the Attorney-General reproached Deputy Cosgrave for the speech he had made inasmuch as he had overlooked that startling and striking declaration of the President, that he recognised that there were certain fundamental matters in the Constitution. That was the first time this House heard from the lips of the President, or any member of the present Executive Council, that they recognised that there were certain fundamental matters in the Constitution which ought not to be susceptible [1229] to, or capable of, change by way of ordinary, casual legislation passed in a few hours in this House. Apparently they have now declared themselves as recognising those fundamental matters but there was no amendment down in the name of any member of the Government Party or any member of the Government to provide any safeguards in reference to these fundamental matters, the right of liberty of the person, freedom of speech and all the other matters that are supposed— it is no wonder that Deputy Corry shakes his head in derision—to be guaranteed to the citizens of the State by the Constitution.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I have had ten years of it.

Mr. Costello: Information on John Aloysius Costello  Zoom on John Aloysius Costello  We put down amendments dealing with the judiciary, the Comptroller and Auditor-General and these fundamental rights. Until we put them down, there was not a single suggestion from the Government that they intended to cover these matters and there is not a single suggestion even now that they intend to cover these fundamental matters in this Bill. They propose that the Bill should pass as it stands at the moment, without any safeguard for these fundamental rights of the citizens. I do not intend, as I said before, to enter into a legal controversy on the question of whether or not this Bill itself is constitutional or unconstitutional. I have a very clear and very decided view on that subject but I am not going to air it in this House. The President, by putting down, after our amendment had appeared on the Order Paper, the amendment dealing with the Comptroller and Auditor-General and the judiciary and providing safeguards— they may not be adequate safeguards, but at least they purport to be safeguards—against interference with the independence of the judiciary and the Comptroller and Auditor-General, and by leaving out any safeguards for habeas corpus, the right of free expression of opinion, and the other fundamental rights in the Constitution, brings into bold relief the fact that he regards the matters, which he has provided [1230] for in this Bill, the independence of the judiciary and the independence of the Comptroller and Auditor-General, as the only vital fundamental matters in the Constitution. To him, the liberty of the subject, the right of free expression of opinion, the right of free assembly, which Deputy Corry again shakes his head at in derision, and all the other fundamental rights of the Constitution are of no importance. He did not intend to provide for them, and he has not provided for them in this Bill.

In the amendment that was put down by us to-day, dealing with those fundamental rights of the citizens of the State, we proposed a certain form in which those rights should be safeguarded. The President said that he did not like the method by which we proposed to safeguard them. He agreed that they should be safeguarded, but he preferred the Referendum. He did not say he was going to safeguard them even by Referendum, at any stage of this Bill, nor did he say it even when this amendment appeared on the Paper, nor was there any Government amendment put down recognising the principle in our amendment even though it did not recognise the method. If there were any sincerity in the declaration of the President or the declaration of the Attorney-General that those fundamental rights are recognised, when this amendment was put down by us to recognise those fundamental rights, if the only objection to the amendment was one of method, a Government amendment ought to have appeared on the Paper, ought to have been passed by this House, and ought to have taken its place in the Bill. That is not what this motion before the House at the moment proposes to do. It proposes that the Bill shall be received for final consideration with only two fundamental rights in any way safeguarded—the independence of the judiciary and the independence of the Comptroller and Auditor-General. The liberty of the subject is not safeguarded. The right of free expression of opinion is not safeguarded, nor is there any intention so to safeguard it. The Attorney-General stated during [1231] the course of the discussion that something in the nature of what he called a ramp was being set on foot by the Opposition Party in connection with the Seanad. I made it very clear during the course of the Second Reading of this Bill that we were not standing for this Seanad as at present constituted; that what we were standing for was a proper check and constitutional safeguard for the fundamental rights of citizens of this country, and that at the moment the only safeguard in the Constitution was the Seanad. Whether or not it was the best safeguard was a matter for discussion. Whether or not this Seanad was the best Seanad that could be devised was also a matter for discussion. Whether a unicameral legislature or a bicameral legislature was best in the interests of the country could also have been a matter for discussion. We were not given the opportunity. This Bill was rushed in without consideration, without any warning, without any thought, as is perfectly apparent now, and with the sole motive of getting rid of what the Minister for Industry and Commerce referred to as the Jamesons and other ex-Southern Unionists. The Seanad, as it stands at the moment, is the only safeguard and the only constitutional check.

We have got to a stage now—which we had not arrived at some weeks ago —that the Government admit there must be some constitutional check on the Executive, even though that Executive has been returned to power by the popular vote of the people. That is now admitted by the Government. The only constitutional check we have at the moment is the Seanad. That is being swept away by this Bill. There is no check substituted for it. The President prefers a Referendum, but he does not say, as a matter of Government policy, that the Referendum should be substituted for the Seanad. He does not say that the matter has been considered by the Government in any way, nor are we given any reasons why the Referendum is a better method of safeguarding the constitutional rights of the citizens of this country than any [1232] Second Chamber, however constituted, would be. No opportunity is to be afforded for discussion in this House of that very vital matter—the safeguarding of the constitutional rights of the citizens of this State, and the safeguarding of the ordinary liberty of the subject from encroachments by any Executive, no matter from what Party they are formed. If it were the policy of the Government to get rid of this Seanad, we ought to have been in a position to discuss calmly and without political heat the question as to whether a unicameral legislature or a bicameral legislature was the best system in the special circumstances of this country, or whether the Referendum was more appropriate to the condition of the country. Those are matters on which various views might be held. The Referendum is supposed to be the hallmark of political democracy. It may be a very useful constitutional machine in some countries. It may even be a very useful machine in this country. It is a matter for discussion and very serious consideration as to whether the system of Referendum, having regard to the conditions existing in this country, is the appropriate method of safeguarding the constitutional rights. I admit that is a matter for opinion, but those matters are so vital that the ordinary citizen should not in any way be prejudiced in his considerations by the bringing in to this Dáil of a Bill the sole purpose of which is political and which is merely what I called on the Second Reading of this Bill, a piece of Presidential pique.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I did not intend to intervene in this debate but for hearing Deputies opposite talk about the liberty of the subject. That is rather amusing. I wonder when did they learn that the subject has any liberties whatsoever? When they sat here they had no idea of that description. To anybody looking back over the last nine or ten years, and seeing the way in which the rights of the subject were looked after in those days, it is rather amusing to hear Deputy Costello speak of them to-day. The rights of the subject! I have seen, for instance, checkers on the Great Southern [1233] Railway pulled off a train 13 times in one fortnight, in order that they might be dismissed from their employment. There was no charge whatever against them. I have seen men arrested on their way to work, pulled into the local barracks, and kept there from 8 o'clock to 12 o'clock. They were then allowed to go home, and no charge was made against them. I have seen the same thing happen five times in one week to men going to work in Ford's factory. The result was that they were discharged from their work. The factory had no use for men who could not be there at the appointed hour to do a day's work. That was the liberty of the subject. They talk about judges. I got any amount of invitations here to speak about judges when this matter was on. I had a little experience in 1926, and, mind you, that was a long time after the Civil War was over, and a very short time before I came in here to have a look across at the nice gentlemen who had done all this good work. I was arrested about 2 o'clock one morning in 1926, taken off to the local barracks, and kept there for three nights and three days. I was then charged. I was told I was then being arrested. I was taken to a room upstairs. A gentleman who called himself a judge sat down there. He gave a look at me and said “Remanded for eight days.”

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  It should have been “Guilty.”

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The history of the Deputy in 1926 is absolutely irrelevant to the Report Stage of this Bill.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I think on account of the way in which those gentlemen have talked during the last few days, and the great play they are at present making about the liberty of the subject——

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  What happened in the past few days has nothing to do with the Report Stage of this Bill. Discussions are not projected from one Bill to another, and the Deputy is not entitled to reply now to arguments advanced on a different Bill two days ago.

[1234]Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  It was said on this very Bill.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The Ceann Comhairle has stated that the story of the Deputy's experiences in 1926 is not in order.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  I am quite satisfied. We shall have another opportunity.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  You can speak on the Estimate for the Department of Justice.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  Particularly considering that after I was discharged, as no charge was made against me, I was rearrested on an order signed by Paddy McGilligan.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  I did not know I ever did such a good act.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  It is a pleasure in store for me some day I hope. When we hear all the play that is being made about the liberty of the subject, and hear Deputies opposite saying that majority rule should not be sufficient to remove a judge, and when we remember the things done in the name of majority rule for several years, we wonder what has changed their minds and consciences so quickly. Deputies should not be so forgetful of what they did in the name of majority rule for many a year.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  I am rather glad to get the definite indication from the last speaker that what he aims at is majority rule to remove judges. That is quite frank. Majority rule is to be allowed to remove judges. That is Deputy Corry's idea, because somebody remanded him in 1926. That is a clear-cut expression of the view of Fianna Fáil back benchers. It is the view of the Front Bench, too, only they do not express it so clearly. Why have we in this measure what Deputy Costello alluded to—that out of the whole Constitution two Articles alone have been picked out as Articles to be safeguarded in some way or another? I do not think there is the slightest safeguard in it.

Let us consider the course of the measure. It was introduced here when the President was undoubtedly suffering [1235] from a rebuff that he got over a most undemocratic proposal of his that went to the Seanad and was rejected there. That measure was introduced and came up for Second Reading. Right through the course of the Second Reading debate no word came from the Government that they thought there was one Article of the Constitution more sacred than another, or more deserving of safeguarding than another. When we came to the Committee Stage, the statement was made at an early stage of it that the measure had been very carefully considered in every one of its sections. The Schedule referred to most of the Articles in the Constitution and, of course, in referring to some, one would have to conclude that the others would be referred to, if only from the point of view of excluding them from the Schedule. Very late in the course of the Committee Stage the President stated that there were some Articles of the Constitution of greater value than others. His second phrase was that there were some of value and they should be preserved. Now we come to the Report Stage, and two amendment are put down which pretend to safeguard the judges and the Comptroller and Auditor-General. In the course of the discussion on the Fourth Stage we get the statement from the President that, in his view, the Referendum is the way to look after the other Articles of the Constitution.

An amendment, which had not very much force in it, but which was, at any rate, as good as amendments Nos. 2 and 3 in relation to the judges, was put down to safeguard what were considered to be certain fundamental rights of the Constitution. I do not suppose anybody has been so audacious as to argue that the Articles to which amendment No. 1 relates do not deal with very vital matters. They can be easily enumerated: freedom from arrest; liberty to speak and to associate freely for lawful purposes; the right of one's dwelling being inviolable; Articles to protect the Dáil, making it an obligation on the Government to call it together at least [1236] once a session for the purpose of discussion, so that questions agitating the public mind may get at least one chance of debate; Articles which protected the members coming to and going from the Dáil; Articles which protected their utterances here in this House; Articles which state that finance and the judiciary have to be safeguarded in a certain way; Articles which state that the only armed forces in the State should be those under the control of the Oireachtas. It was sought to give some sort of colour of protection, when proper protection had failed, to these, and they are left out. It is not even proposed to have a four-sevenths majority about changing, say, the Article of the Constitution which says that the dwelling of each citizen is inviolable and shall not be forcibly entered except in accordance with law. There is no pretence that it requires a four-sevenths majority, hereafter, to change the Article of the Constitution which says that the liberty of the person is inviolable. That is a matter which deserves comment.

By pressure of argument, as this Bill went through its stages, the President was forced to the bare admission that there were Articles of value in the Constitution which should be safeguarded. It did not push him any further, not even to the pretence of safeguarding them, except these two only. So that the sacred majority of the people operating by one vote can, as Deputy Corry wants, remove judges. If there was any sincerity in the view expressed that there are Articles in the Constitution of more value than others, they should be set aside in some way and different treatment given to them from that which is given to the others, but the marked contrast is there. Simply because the discussion centred upon two Articles, because it was politically a bad thing to have it rumoured abroad that the President wanted, possibly, to attack the courts and, possibly, wanted to attack the Comptroller and Auditor-General; because it was a wrong thing to go out that the President possibly was not feeling easy in relation to the legality of some of his acts, and in relation to [1237] the financial integrity of some of his acts, we have a pretence to cover these two things. There is no pretence even to cover the Articles which state that there shall be no armed forces in the country except those operating under the control of the Oireachtas; no pretence to cover all those others which protect the Dáil, necessitate the summoning of it at least once a session, necessitate respect for certain things in regard to people's persons and their homes, their right to associate freely and speak their minds freely. All these now definitely are open to the great majority. These things do not appeal to Deputy Corry. He is saddened by his own experience.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  And your acts.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  If I did anything against Deputy Corry it was always open to question by judges.

Mr. Corry: Information on Martin John Corry  Zoom on Martin John Corry  Deputy Donnelly questioned what happened.

Mr. McGilligan: Information on Patrick McGilligan  Zoom on Patrick McGilligan  And succeeded. Yet, despite that, Deputy Corry's view is that the majority ought to have power to wipe out the judges. Certainly! And presumably also to break up the public meetings of those who are in a minority of one in the representation of the country; and possibly, also, to have the dwelling houses of people, opposed to Deputy Corry, open to access by him in his capacity as a representative of the majority. The history of this thing is interesting. There was no appreciation of its effect when this measure was introduced. I do not believe the Bill was properly considered. The statements made in support of it did not lead anyone to believe it was given the slightest consideration. It was a measure introduced as a result of pique and panic, bad temper and hot temper, and with very little appreciation of the fact that it was creating a very dangerous situation. Then, apparently, an attempt was made to appreciate the danger, and it was thought politically better that something should be done about that, and as a result we have this amendment which is a confusion about fractions which shows that there was some appreciation of the situation by the President. I do not know what this amendment means, or whether it [1238] means anything. But it is introduced by the President, and it shows what his idea is about the other Articles of the Constitution. He probably has my view of these two amendments, which is that they are not worth anything. They leave it clearly expressed to the people that the President holds Deputy Corry's fond view, that the views of the majority here should carry in relation to all public meetings in the country.

Mr. Desmond Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  The bring ing in of this Bill, in the first place—

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  I must remind the House that this discussion is being expanded into a Fifth Stage debate. The Report Stage is not the time to raise the question of the origin, or the principle, of a Bill which has been approved by the House.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  I do not contest your ruling, but I think that, as on the Report Stage, a certain number of amendments were discussed, which brought out largely the fundamental heresy of the Bill, it is the proper place at which to discuss that aspect. If you say I am out of order I shall not continue.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  I have not ruled the Deputy out of order, but the motion before the House is that the Bill as amended be received for final consideration. The House has dealt with some amendments and the discussion on them may not be reopened.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  Is not the situation arising out of the Committee Stage appropriate?

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  Yes, the Bill as it emerged from Committee.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  And now as amended on this stage. What I was about to say is that the discussion, in regard to certain amendments, has brought out clearly and must have clarified the President's own mind, that his idea in regard to the Seanad was very much indicated by his Party propaganda, and that he thought the Seanad could be easily abolished by appealing to the class passions of the people and by pointing out that certain people, who are ex-Unionists, in the Seanad were opposed to him and his Party.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  Does the [1239] Deputy not realise that he is making a Second Reading speech and that the House has approved of the principle of the Bill to abolish the Seanad?

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  What I would point out is that the President, when introducing this Bill, said——

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  That is going still further back.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  The President overlooked the fact that there are certain fundamental rights involved in the Constitution which should not be changeable by any authority in the country. The President is creating a situation by which he, or his successors, will have complete freedom without let or hindance to abolish all these rights. And he clearly overlooked the fact that the Seanad is a safeguard for them. The President's attitude was indicated when he said that the Seanad has, on several times, shown that it cannot be relied on to accept measures sent up by a body of the political complexion of the present majority of this House. That shows the state of the President's mind. He says the Seanad supported certain legislative measures that were brought before it of which he disapproved. When our Government was coping with organised murder, at a time when an attempt was made to corrupt justice, and the fountain head of justice, the jurors, were called upon to commit perjury, or else face assassination, the Seanad agreed with us, when we brought in a Bill, the effect of which was to give the then Government power that they did not previously possess to deal with that situation. The President reads into that that inasmuch as the Seanad realised that the law as it then existed did not give the Government enough power to deal with that situation, the Seanad, because it passed the Bill that the then Government set up, must be of the same political complexion as that Government. He seemed to think that no one should agree to put down these murder associations at that time unless they were blinded by political bias in our favour. He says the Seanad was no check and he proposes now a check of four-sevenths with regard to two items.

[1240] I think it was when this Bill was introduced into the Dáil for the first time that the Electoral (Revision of Constituencies) Bill came up. After the last general election the President and Ministers and the chief propagandist of the Party opposite went round the country and stated that if there had not been proportional representation there would have been a complete victory for Fianna Fáil. They assumed that the smaller constituencies that would be required would be replicas of the larger constituencies as they exist, so that the smaller constituencies would vote as the bigger constituencies voted. They assumed that in the constituencies to be subdivided, where Fianna Fáil had a majority, they would still have a majority in the smaller ones. That would mean that in the smaller member constituencies, in the vast majority of cases, their candidates would be elected. What does the Electoral (Revision of Constituencies) Bill do? If we are to accept the reasoning of Ministers since the last election, the Bill for the change of the constituencies effectively does away with proportional representation, and if the vote is to be the same as at the last election, and the small constituencies vote proportionately as the big constituencies voted, then Fianna Fáil in the elections that will follow after that Bill will have an overwhelming majority. Take Wicklow with three seats. A bare majority over 50 per cent. gave two seats to Fianna Fáil and one to the Opposition. Now you have a situation, under the new Bill, in which the majority of the constituencies in the country are to be three or four-seat constituencies. If we are to accept the Government's reasoning and propaganda, that means that in every three-seat constituency they, having a majority, will get two seats, and in every four-seat constituency they, having a majority, will get three seats. That means that they would have in the next Parliament an overwhelming majority and the four-sevenths would not apply at all. I do not personally regard four-sevenths as having any meaning whatsoever. This four-sevenths was brought along on the [1241] lines of the selling of the cow. We brought in an amendment which, to my mind, was quite inadequate. The Government could, at any time they wanted, get rid of the judges by simply repealing that amendment. The really important thing is now that the Government has created a situation in which their Party or the Party that takes their place is going to have uncontrolled power over the fundamental liberties of the people.

The President refused our amendment to-day. He said that the Referendum is a more appropriate way of meeting the situation, but he has not brought in the Referendum. The President makes nice, reasonable speeches but he takes care to get the power that he wants. To be quite honest, I do not think that our first amendment was in any way adequate at all. Our amendment dealt with the Articles in the Constitution which guarantee the fundamental rights of the people. These Articles are now going to be at the mercy of any Party in the country that can snap a majority. If the President were honest he should face up to the situation and see that adequate means were provided so that these rights in the Constitution could not be arbitrarily done away with. We know that the President makes fine speeches. He said that the Dáil is not going to act capriciously. But the whole Constitution and an enormous mass of law is based on the assumption that it is always possible for the Dáil to be capricious. There is enormous machinery built up recognising that fact. If the President thinks that his own Party is perfect he surely must recognise that it will be a perfectly easy matter for another Party to come in here and do all sorts of things. He is handing over the most absolute, dictatorial powers to his successors.

It was said to-day that this Dáil is no more sovereign than any of its predecessors or any of its successors. During the lifetime of this Dáil the President has taken power that the last Dáil had not got. We were elected in September, 1927. Undoubtedly, we came in with very great powers. I think we had more powers than any [1242] Executive Council in Europe at the time, but with all that there was a restraint on us. The Seanad was in existence and it could not be dissolved by our arbitrary act. So far as the President's Party is concerned, if they give him any trouble, he can simply say: “I am going to dissolve the Dáil to-night” and, of course, the members of it know that unless they are taken under his cloak they cannot be elected. We had not the power that he has taken when we were elected in 1927. We knew very well that if we proposed any legislation which did not appear reasonable to people, generally, or which appeared to be outrageously unreasonable, the Seanad would, necessarily, use its power against us. The President knows very well that when we were elected in September, 1927, the Seanad was already there, and that we had no power to put it out of operation except after the lapse of a certain number of years, when one-fourth of its members would automatically go out and have to be replaced. The Seanad had power, limited power it is true, but power enough to make it impossible for any Government to use absolute arbitrariness. The President is now giving this Dáil power that its predecessor had not, unrestrained power, and he is passing that over to whatever body of men takes his place when he gets out of office. By passing this Bill we are going to hand over to some Executive Council, the present, the one that succeeds it, or some other, absolute power over the fundamental rights of the people of this country. The more I think the more I feel that absolute nationalism in a State is very far——

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  The Deputy is now very far from the Bill before the House.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  I was just going to bring that in by way of analogy, but I do not want to digress. The President is taking power to interfere with the most vital and sacred rights of the people, and is wiping them out. He says himself that he is satisfied that grace is operating in him now, but is it always going to operate in him so that he can never do anything wrong or sin against the rights of the people? [1243] We cannot look beyond the legislation we are dealing with. When this Bill becomes law we must assume that the people of this country are going to be greater slaves of the Executive Council than any unfortunate moujik ever was under the Czars of Russia. While that is so, the President has not indicated that he is going to take any steps to provide any restraints on his own Government or on any Government that may succeed it. In his pique and loss of temper he is overthrowing the Seanad. While he may have, legitimately enough, seen faults in it, yet he had no right to abolish the Seanad until, at all events, he was completely satisfied that he was going to create some other instrument that would discharge the necessary and desirable functions now performed by the Seanad.

In amendment No. 1 we proposed a sort of substitute. To my mind, it was completely unsatisfactory: not nearly as good a proposal as the maintenance of the Seanad even as it exists at present. The President refused to accept that. I think that when we discussed this earlier it is possible that Deputies and the people of the country did not realise what was at stake. In the discussion on this Reading of the Bill it has been brought out and has not been refuted—it cannot be refuted by the Government—that the fundamental rights of the people are being taken away. I tried in an inadequate way on previous stages of the Bill to bring out this point: that we are now in the position in which the Constitution can be changed by ordinary legislation. It is abundantly clear as regards the Articles in the Constitution that exist for the purpose of protecting the fundamental rights of the people, that the amendments that we proposed to them provided a very inadequate restraint on the Government, but even so the Government did not accept them.

The Attorney-General:  On a point of order, I would like to know if the Deputy's speech is in order seeing that the amendments have been disposed of.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  On the point of order, this Bill having been amended is open [1244] to very serious objections. The Deputy, I submit with great respect, is in order in making the case that the Dáil in its wisdom ought not to pass the Bill in its present shape even though it has accepted an amendment to it. In view of present circumstances and of the information at its disposal, I think that the Dáil should reject the measure. I think the Deputy has a perfect right to make that case.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  Having heard from the leader of the Opposition an explanation of the Deputy's speech, the Chair is still of the opinion that the Deputy in possession is making a Second Reading speech. Is the Chair to assume from the Deputy's speech that the Fifth Stage is to be given immediately without discussion?

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  It could not.

An Ceann Comhairle: Information on Frank Fahy  Zoom on Frank Fahy  I think it is a natural assumption from the Deputy's speech.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  I have nothing more to say.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  I have only a few observations to make on the measure as amended. There is a certain gentleman, as I have heard, who occasionally commits a lapse from grace: that is to say he spends too long at his dinner, but being advanced in years he takes the precaution of getting medically examined before he does that so that there will be no fatal consequences. I would suggest to the Ministry that in future, before they introduce a measure such as this, they ought to take care to have the implications of it examined. As amended, it has a shred of respectability that it had not got on its introduction, a fact which was revolting to the finer feelings of a man like Deputy Fitzgerald. But it has been slightly improved. That is to say, it is not absolutely as dangerous as it was.

Mr. Fitzgerald: Information on Desmond FitzGerald  Zoom on Desmond FitzGerald  Question.

Mr. Cosgrave: Information on William T. Cosgrave  Zoom on William T. Cosgrave  If I may point out to my friend here, it has at least this pull over the Bill as introduced: that a day has been added to the official life of the Comptroller and Auditor-General and to the independence of the judiciary. The Bill [1245] has been amended in that respect. In other words, the Dáil must first take out these two clauses before it will exercise its majority, and I presume it would take two days instead of one. Even a day extra in a man's life may be of some advantage.

It is for that extra day that I am putting to the House the advisability of not receiving this Bill for final consideration this evening, and so enable the Executive Council to consider the whole matter in relation to the criticisms that have been passed on the measure as now amended. The various clauses to which it was sought to give greater security in the first amendment are still within 12 hours—six hours one might say—of being removed from the Constitution altogether, if and when this Bill passes into law. We have been told that that matter will be the subject of examination by a Commission or by some body that will be set up. May I say in all seriousness that the introduction of such a measure as this, and other acts on the part of the Administration, will keep some people at any rate away from any counsel with the Executive. In other words, people's confidence is so shaken that they may not consent to being made what they will consider the cat's paws, or the persons who will be simply brought in to help the Government out of a difficulty, when they know their advice will be rather canvassed than employed.

I have already said, when I was recommending the adoption of the first amendment here this evening, that there should be no objection on the part of anybody who has any respect for representative institutions or for democracy, against securing these clauses. It was not outside the bounds of possibility for the Executive, with all the resources at its command, to have framed an amendment better than that put down in our name. We put down the amendment in all seriousness, in the very special circumstances of the case, that we thought could have been acceptable even to the pride of the Executive Council. The case for the strengthening of these Articles is admitted, but the consideration of their [1246] strengthening is postponed. Within recent months we have had the word “dictator” bandied about all over the country, but when this measure, as amended, is passed, not even the judiciary or the Comptroller and Auditor-General along with them, can impede an Executive Council, with a majority of one in this Dáil, from establishing a dictatorship. All the professions and pretensions we get to the contrary do not allay the uneasiness there is behind that feeling that there is simply a distance of nine, ten or 11 months between us and the passing of that Bill, supposing it does pass into law.

I do not think there was ever a measure introduced into the Oireachtas which should have had greater consideration than this measure. It is quite plain on the face of it that it did not get that consideration. In the first place, there were no amendments to the measure on the Committee Stage. Objection is occasionally made by either Ministers or backbenchers on the other side that there is a waste of time in discussions here. On the Paper to-day there were two amendments from the President of the Executive Council, showing that, if it were not for the Opposition, there would be far less security for the independence of the judiciary or the Comptroller and Auditor-General. It is to be observed that this is List No. 2. I do not remember having seen List No. 1. It is quite possible that the first amendment, which was drafted by the Executive Council, on subsequent consideration was passed over and that this is the second amendment, showing again hasty judgment, imperfect judgment. Now, I suppose, this is the last word in wisdom. If the Attorney-General were asked to pronounce on the Constitution of Latvia. Lithuania or Turkey and if the safeguards in their Constitutions were to be the safeguards in our Constitution with a single Chamber, I am positively certain he would say, “Well, we could do much better if we tried.” It is for that purpose that I am putting it to the House that this measure which it is now proposed to receive for final consideration should not be passed by this House, so as to [1247] give the Executive Council an opportunity of reconsidering the whole matter. It is not a Bill for which there is any need just now.

I presume that when the previous measure, which limits the authority of the Seanad to holding up a measure from this House for three months, becomes law next December, January or February, or whatever date it may be, this measure will be re-introduced. It is not a matter of importance that this Bill should pass any time in May, June or July. I do say that bringing in this measure now in the midst of all the financial business that has got to be done, is little short of deliberate waste of time. I take it that when the other measure becomes law it will be employed to enact this Bill again so that this Bill will be passed through the House again. I have much more consideration for the dignity of this House than the Ministry. I dislike even seeing my political opponents introducing and passing into law, with the aid of their majority, a measure for which this Oireachtas, and not they, will be held responsible because it is not the Government that passes Bills but the Oireachtas. I say that any historian of the future, writing about this measure, will be bound to say that it was conceived in haste, passed in haste, and without that consideration that it should have received from the Ministry.

The President: Information on Eamon de Valera  Zoom on Eamon de Valera  We have been listening to a trifling speech,, trifling because there was no serious attempt to deal with the questions at issue at all. In fact the attitude of the Opposition for the most part has been trifling. We brought in the Bill to abolish the Seanad with the Articles that had to be amended consequentially, indicated in the Schedule. That was a complete Bill, perfect in itself, dealing with the particular issue involved. Arising out of it there was a question of the future constitutional position and I indicated when we had the earlier discussion on another Bill, what our attitude was in that particular regard. The suggestion that we have been forced step by step to a new realisation of this, that, and the other, is all nonsense. If anybody [1248] takes the trouble to go back and to look at the statements made on the Bill, shortening the time for delay, they will indicate that these things were clearly foreseen. What happened with regard to these amendments is that the Opposition, in order to follow up the policy which was clearly indicated by their leader in his Second Reading speech, the policy of trying to create panic of one sort or another, fastened on stating that the Comptroller and Auditor-General could be easily removed; that there was some purpose in this Bill to attack the position of the Comptroller and Auditor-General. The Comptroller and Auditor-General is as safe when the Seanad Bill is passed, as at any other time. I hold he will be safe by a simple majority.

These people, who examine everything thoroughly, brought in amendments, but were not clear of their effects. If Deputy McGilligan's view was taken why were they brought in at all? Was it for the trifling delay that Deputy Cosgrave says would be gained? If Deputy McGilligan's view is correct, and if it is accepted by his colleagues, then all these amendments were nonsense. They brought them in simply to try to create a certain impression, to give them an opportunity of talking about a certain thing. We want to meet them as far as is reasonable. We want to meet Deputy McGilligan's point of view to a certain extent. The Deputy says his point of view cannot be met. Then it cannot be done in this Dáil, and that is all that is to be said about it.

I said I was not clear as to the legal position with regard to the Constituent Assembly. That does not mean that I had not views about it, or had not thought about it. I know the condition of the country at the time that the previous Constituent Assembly met. I know how far it was representative of the people. They talk of “contract” or something in the Constitution. I remember the day it was put before the people, on the day of the election. I would like the Deputy to explain legally what is the position of a Constituent Assembly in any framework. It simply does not come [1249] in. It originates certain framework of government. It may provide for certain changes in the fundamental law, that is, for changes to be effected after the fundamental law has been passed. There is nothing to prevent a new Constituent Assembly being called at any time. There is no fundamental way in which it is laid down legally that such Constituent Assembly shall be called or constituted. When we talk about Constitutions we are dealing with very fundamental things. Some of the arguments reminded me of the squirrel in a revolving cage. It gets nowhere, as each step may be a step backward. Our attitude has been this: This Constitution was framed originally under exceptional circumstances. There were certain Articles in the Constitution which were forced upon the people of this country. There are certain Articles which represent democratic ideals. Those that represent these ideals, in so far as a thorough examination by people who have had experience of administration goes, are consistent with practical government. These Articles ought, with all possible speed, be examined, and be made as lasting as it is possible for anything to be made lasting, in a Constitutional way, without the danger of a cast-iron Constitution which, as I said, is always a temptation to revolution.

It is in the national interest that the other Articles should be easily changed, according to the progress made by our people, and according to the ability of the people to get recognition of a free expression of their will. It has been always my view, in the first place, that in removing the Seanad the procedure [1250] in this House would have to be examined; and, in the second place, the Constitution, in light of the fact that you are going to have, for a period, at any rate, a Single-Chamber Legislature. But when would that be done? Would it be done when the Second Chamber exists, when you are working without the knowledge if you are going to have a single Chamber and Executive for a time, or should it be done when the Dáil, at any rate, has passed this measure, and it is bound to become law after a certain period? Clearly the interval is the proper time for first determining all the necessary changes. No one can suggest that necessary changes cannot be made, such as the question as to whether certain Articles of the Constitution which have no reference whatever to the Treaty or forced relationship should not be examined, with a view to getting them into a form in which they can be made as permanent as we deem it advisable to make them.

When dealing with this originally, I said that I regarded it as wise that provision should be made for changing the Constitution during a protracted period. That argument holds particularly in regard to certain Articles. Those that deal with the democratic ideas of government can, to my mind, be dealt with out of hand. The moment this Bill has been to the Seanad, and is either passed or rejected by it—and I am assuming for the moment that the Seanad is likely to hold it up—it can be dealt with. I do not think I can possibly deal with that at this stage. I will reserve it for the Fifth Stage.

Question put.

Bartley, Gerald.
Beegan, Patrick.
Boland, Patrick.
Brady, Brian.
Brady, Seán.
Breen, Daniel.
Browne, William Frazer.
Concannon, Helena.
Corry, Martin John.
Crowley, Timothy.
Derrig, Thomas.
De Valera, Eamon. [1251]Kissane, Eamonn.
Lemass, Seán F.
Little, Patrick John.
MacEntee, Seán.
Maguire, Ben.
Maguire, Conor Alexander.
Moore, Séamus.
Moylan, Seán.
O'Briain, Donnchadh.
O'Doherty, Joseph.
O'Grady, Seán.
Doherty, Hugh.
Donnelly, Eamonn.
Dowdall, Thomas P.
Fogarty, Andrew.
Gibbons, Seán.
Goulding, John.
Harris, Thomas.
Keely, Séamus P.
Kehoe, Patrick.
Kelly, James Patrick.
Kelly, Thomas.
Kennedy, Michael Joseph. [1252]O'Reilly, Matthew.
Pattison, James P.
Pearse, Margaret Mary.
Rice, Edward.
Ruttledge, Patrick Joseph.
Ryan, James.
Ryan, Robert.
Sheridan, Michael.
Smith, Patrick.
Traynor, Oscar.
Ward, Francis C.

Alton, Ernest Henry.
Bennett, George Cecil.
Broderick, William Joseph.
Brodrick, Seán.
Cosgrave, William T.
Costello, John Aloysius.
Curran, Richard.
Davis, Michael.
Dockrell, Henry Morgan.
Doyle, Peadar S.
Esmonde, Osmond Grattan.
Fagan, Charles.
Fitzgerald, Desmond.
Fitzgerald-Kenney, James.
Good, John.
Keating, John.
McDonogh, Martin.
McFadden, Michael Og.
McGilligan, Patrick.
McGovern, Patrick.
McMenamin, Daniel.
Morrisroe, James.
Mulcahy, Richard.
Murphy, James Edward.
Nally, Martin.
O'Donovan, Timothy Joseph.
O'Higgins, Thomas Francis.
O'Neill, Eamonn.
O'Reilly, John Joseph.
O'Sullivan, John Marcus.
Redmond, Bridget Mary.
Rice, Vincent.
Rogers, Patrick James.

Question declared carried.

Final Stage fixed for Tuesday, 22nd May.


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