An Bille um an Deichiú Leasú ar an mBunreacht, 1987: An Dara Céim (Atógáil). Tenth Amendment of the Constitution Bill, 1987: Second Stage (Resumed).

Thursday, 23 April 1987

Dáil Eireann Debate
Vol. 371 No. 12

First Page Previous Page Page of 4 Next Page Last Page

Athchuireadh an cheist: “Go léifear an Bille don Dara hUair.”

Question again proposed: “That the Bill be now read a Second Time.”

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  When the debate adjourned last evening I had made a number of points which I believed to be of profound significance in terms of the interpretation of the Crotty judgment in the Supreme Court. I had stressed that the Supreme Court's unanimous judgment is not a clean bill of health for the Single European Act as approved by this House. I had made the point that far from immunising directives and regulations made in consequence of the Single European Act, the Supreme Court decision is expressly to the effect that the Single European Act is not necessitated by our accession under the original European treaties and that it follows from that that none of the immunities which attach to other regulations made under the original treaties will apply to any regulations or directives issued from Europe to have [2320] binding effect in Ireland under the provisions of the Single European Act. Notwithstanding the judgment of the Supreme Court that Parts 1 and 2 were not proven by Mr. Crotty to be unconstitutional, it is manifestly now the case that no directives issued in consequence of our accession to that agreement enjoy any constitutional immunity.

I say as forcefully as I can to the Government that at some stage a regulation will be brought into effect in this country which derives its force from the Single European Act and which is for the purpose of implementing that Act and that that regulation will have as much constitutional validity as a general road traffic by-law and that if it infringes anybody's constitutional rights it will be thrown out immediately by the Supreme Court. This proposed amendment to the Constitution does not give the Single European Act the same status as the European treaties. It means that regulations and directives brought into force in consequence of our adherence to the Single European Act will have no constitutional immunity. We are storing up a lot of trouble by failing to put the Single European Act on the same footing and giving it the same validity and the same constitutional immunity as we accord to the original treaties on which the Communities are based.

I will reiterate the other point I made, that is, that the 1973 European Communities (Amendment) Act which gives this country a particular method of implementing European directives by ministerial regulations is unconstitutional, and it is unconstitutional because it is not necessitated by the European treaties. We had an option as to how we would implement European directives. We chose to do it by ministerial regulations but ministerial regulation is not adequate to support legislation in this country and there are a number of cases to that effect. The latest text book on the subject Administrative law by Hogan and Morgan, examines this exact issue on pages 16 to 18 and sets out clearly why the Act is unconstitutional. It all flows from the exact same problem that the [2321] wording of Article 29.4.3º, with its necessitated obligations formula is so restrictive as to endanger a number of things we have taken for granted. I ask the Taoiseach and the Minister for Foreign Affairs to ask the Attorney General's office to consider the four pages set out in that text book and to advise them whether the learned authors of Administrative Law are right or wrong in challenging the constitutionality of the 1973 Act. If they do not do this, and if the Attorney General's office does what it appears from the outside to do — to simply engage in legal crisis management rather than any prophylactic approach to constitutional issues when raised by people as responsible as the authors of a legal text book — I believe that the responsibility for the ensuing constitutional and legal chaos which will emerge if the 1973 Act and all the regulations made to date under it are struck down will be the direct responsibility of the Ministers who have failed to take advice in this matter and to head it off. If you choose a wider wording, get away from the notion of necessitated obligations and use a different wording such as the wording proposed by the Progressive Democrats as a discussion formula to widen the terms of Article 29.4.3º——

The Taoiseach: Information on Charles J. Haughey  Zoom on Charles J. Haughey  Does the Deputy know the history of the word “necessitated”?

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I do indeed. My view is very simply that it is so restrictive that it is now preventing us from, as I said yesterday, ratifying the European Patents Convention. It is also preventing us from being certain that the 1973 Act is constitutional. I believe it is unconstitutional and I believe that the arguments set out in this text book are unanswerable. I want to know whether the Taoiseach intends to get the Attorney General's advice on whether that particular doubt cast on the Statute is correct or incorrect.

Why is it that Ireland cannot ratify the European Patents Convention? As I said [2322] yesterday, Deputy Bruton raised this matter years ago and found himself incapable of ratifying it because it accords to the West German courts jurisdiction over patent rights in Ireland and an injunctive jurisdiction to prevent Irish citizens from doing things which infringe European patents. That is another example. The European Patents Convention is not necessitated by our membership of the European Treaties and therefore what flows from it does not enjoy any constitutional immunity. Again we are like a beached whale in relation to our implementation of that particular aspect of the general process of going towards European economic and political union.

I said also in the absence of the Minister for Foreign Affairs and I will now repeat it in his presence, that in my view the doubts expressed by the Minister for Foreign Affairs in a radio broadcast which went out last Monday as to the adequacy of the narrow wording now put forward by the Government and his expressed preference for a broader and more general wording put him in such a fundamental disagreement with what the rest of his Cabinet colleagues are now proposing, that he should, not as a matter of criticism of him but to underline his point, consider his position in terms of stating that this is a fundamental issue which affects the conduct of our foreign affairs. If the Crotty decision becomes the law of the land it will emasculate the conduct of our foreign affairs. Any Minister for Foreign Affairs should consider his position in those circumstances and ask himself if he wants to remain part of a Cabinet which is blind to the implications of the judgment. The Taoiseach's offer to have the matter considered on an all party basis at a later date and to meet the party leaders with a view to seeing what the implications are is a dawdling and inadequate response to what is now a crisis in the conduct of our foreign affairs. If the Captain of the Titanic was of the view that icebergs were floating around——

The Taoiseach: Information on Charles J. Haughey  Zoom on Charles J. Haughey  Smith was his name.

[2323]Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  ——he would not have proceeded blindly ahead.

The Taoiseach: Information on Charles J. Haughey  Zoom on Charles J. Haughey  But he did.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  And look what happened to him.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The close analogy with the Taoiseach will be demonstrated in a moment. The Taoiseach has expressed doubts about the constitutionality of the Anglo-Irish Agreement. Doubtless these are based on a profound consideration of the Agreement by him and the Attorney General to whose advice he had constant access even before becoming Taoiseach. If he has doubts about it is he not aware that there are challenges to that Agreement in the courts? Does he want to preserve the Agreement? He cannot run away from the issue. He cannot have it both ways.

The Taoiseach said he had doubts but yet he sent the Minister for Foreign Affairs to Belfast to operate the Agreement. Was yesterday's exercise a case of not merely shifting the deckchairs on the Titanic, of Deputy Lenihan conducting a furniture auction on the decks and the Taoiseach running the Anglo-Irish Agreement straight into an iceberg which he suspects is there? He suspects it is unconstitutional and has said that, yet he tells the House that he has no immediate plans to copperfasten it. What happens if any of these easily foreseen challenges comes to fruition and the Anglo-Irish Agreement comes unstuck? What will the Cabinet do then? Why is Deputy Lenihan sent to operate an Agreement——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Minister for Foreign Affairs.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  ——which the Taoiseach feels may be in danger of being proved unconstitutional? If he values it one whit he has an obvious and immediate duty to amend the Constitution or else to state publicly that it is a matter of indifference to him if the Agreement falls. He cannot have it both ways as he [2324] has been attempting to do. He must make up his mind. Does he want to save it or risk its collapse in circumstances of total ignominy for the State? The Taoiseach is sticking his head in the sand if he says he has doubts about its constitutionality and then says he is anxious to operate it and has the Minister for Foreign Affairs enthusiastically expounding its virtues as an Agreement and making greater progress than any other Minister has ever made in its operation in one day. That is remarkable.

Our capacity to make a number of treaties has now been put in doubt. As a Minister whose duty it is to conduct our foreign policy he must find himself like a tradesman with no tools, whose entire array of stock has been taken away from him by the decision of the Supreme Court. It is just blithe indifference for the Minister to go to Belfast to operate an Agreement while at the same time the Government do nothing to save it especially when they have an opportunity to copperfasten it, reverse the Crotty judgment and change the situation radically.

When the Crotty decision became public knowledge the Progressive Democrats immediately met to consider its implications and sought legal advice. Based on that advice we immediately saw the wider implications of the judgment. Everyone's immediate tendency would be to support a narrow wording because it is the easy surgical thing to do in the circumstances but after a superficial look at the implications of the decision it became obvious that so much was at stake that we sent about drafting and putting forward for consideration a wider redrawing of Article 29.4.3º of the Constitution. It was not because we decided this would be a clever political manoeuvre or because we wanted to embarrass the Government but it was because we conscientiously thought it was the very least anyone who responsibly cared for the Constitution or constitutional processes could do in the circumstances. I am baffled by the response of the anonymous corps of leader writers to this issue. Never since the [2325] Emperor's new clothes have we had a more classic example of an uncritical view of what the Government are doing. The Irish Independent's editorial today and the editorial in The Irish Press yesterday both accord an uncritical approval to what the Government are attempting to do without seriously analysing the implications of the amendment. It is unwise of anyone, especially a politician, to criticise the media but public debate of this issue is inadequate because the media do not seem to be aware of the wider implications of the Crotty judgment and how it will affect the day to day management of our affairs and of how much danger it poses for international agreements. There seems to be a consensus based on ignorance that a simple solution to a complex problem is desirable. There is no simple solution to a complex problem. This debate will be the first of many about referenda to keep our heads above water in Europe unless the Government come to their senses even at this late stage.

As regards neutrality, military neutrality is understood by most people as not agreeing to become involved in other countries' wars and not allowing other countries to use this country for military purposes. Article 15.6º of the Constitution prohibits the maintenance of foreign armed forces in this country which are not under the direct control of the Oireachtas. As things stand that effectively excludes us from membership of NATO. The Labour Party should take a long hard look at that Article and see if it does exclude membership of NATO. Since the basis of any offensive or defensive pact is that one will participate in a war if the other parties to the pact are attacked or become endangered, the provisions of Article 28.3.1º of the Constitution which accord to this House the final decision as to whether we go to war in any circumstances, taken with the reasoning in the Crotty decision, make it obvious that it is absolutely ultra vires for an Irish Government to agree in advance or to become party to a treaty, even with the approval of Dáil Éireann, to go to war or to assist in a war under certain prescribed conditions. We cannot [2326] agree in advance under those circumstances. There is no threat, therefore, to our neutrality and there is no requirement, therefore, that anything further or more complex be written into the Constitution on the issues. We cannot have foreign troops here as things stand and we cannot become party to an offensive pact or a defensive pact as things stand. Therefore, I ask the Labour Party in particular to take that on board and to look to the existing Constitution for adequate safeguards rather than to complicate the issue now and seek to start inserting vague aspirations to neutrality into our Constitution.

Neutrality means different things in different jurisdictions. To countries such as Finland and Austria it means a balancing act between East and West, one which prevents them, for instance, even from joining the EC because they are bound by treaty or by influence not so to do. To the Swiss and the Swedish it means something different completely. It involves a radically different foreign policy, one which is an armed neutrality and is combined with a capacity to defend the country from outside aggression. This country does not have a neutrality similar to either of those two kinds of neutrality. We do not have armed neutrality. We do not have a capacity really to defend this country from external aggression and we are not in the position Austria or Finland are in in having to perform a balancing act between East and West.

I agree with the former Taoiseach, Deputy FitzGerald, that politically we are not neutral. Ideologically this country is not neutral. We are not indifferent between East and West. We share Western democratic values; therefore, we are not ideologically neutral. The development of the EC requires of this country a degree of honesty and of reality in relation to what we mean when we say we are neutral. We mean we are militarily neutral — that is a phrase which the Taoiseach used, I was glad to hear — that we are not going to become involved in an offensive or defensive pact with NATO at the moment and, if the opinion polls are to be believed, 84 per cent of [2327] the people seem to be of that opinion.

However, we are not ideologically neutral and certainly we support the interests of Western democracy in their general terms and in the European context we must concede to ourselves and realise that in the last analysis our interests lie with developing the EC, that it has external interests as well and that we must do our best to coincide with the external interests of our partners in order to advance the unity of Europe and the interests of the European Communities. That means we cannot adopt the same position as Sweden, Finland and Austria because we are in a different position and it is about time this country faced up to that fact.

Our non-membership of NATO and the Western European Union has a positive value in giving us a different perspective in discussing security matters if that situation comes about. I agree with the former Taoiseach, Deputy FitzGerald, that the time has come for Ireland to cease this business of remaining silent and of having no discussions on the security implications for Western Europe of global decisions now being made. They are just as important for the average Irishman as they are for the average Dane. I agree with them. There is no percentage in people suggesting that Ireland's neutrality is a moral concept which is of greater value than Danish non-nuclear membership of NATO. The Danes have a different set of realities to contend with, and this country is no more or less moral in its political posturing. Much of our neutrality flows from very base self-interest and unwillingness to make certain expenditures just as much as it does from moral concepts about the nature of neutrality.

We are not in the same position as all the members of the non-aligned nations who meet so regularly and some of whom do not appear to be all that non-aligned. We are in a different position and it is about time we realised it. I appeal to the Government to re-articulate a new policy on neutrality which affirms our military [2328] neutrality, which coincides with the constitutional bar on our becoming a member of a pact and the Constitutional bar on the stationing of foreign troops here but, in that context, allows Ireland to play a real role in discussions on security issues that inevitably affect this country. I ask the Government to reconsider that role and no longer to confine themselves to this silent attendance during these discussions and the non-participative mould which heretofore has been the norm.

While the Progressive Democrats reaffirm our support in principle for any measures which lead to the ratification of the Single European Act, we want to make the point that this Bill is weak, inadequate, ill-thought out and wrong minded. It is an opportunity being thrown away, in circumstances which are somewhat mysterious, to copperfasten our capacity to act on the international stage as we always thought we could. In particular it is an opportunity being thrown away to conserve agreements on which Irish people place so much value spanning the whole spectrum from the UN on the one hand to the Anglo-Irish Agreement on the other, to the smaller treaties such as the Patents Convention I mentioned and the immigration treaty to which Deputy O'Malley referred yesterday. All these are in issue here today, and the Government are, by their narrow wording, running away from constitutional reality.

The Progressive Democrats are determined to point this out to them and determined that they as the Government will take responsibility for the mistake and error they are attempting to indulge in today and attempting to force this country to make on a collective basis. If they take responsibility for the implications of a narrow wording, if they take responsibility in a honest way for endangering the Anglo-Irish agreement, if that is spelt out to the public and if they can give a justifiable excuse for their failure to conserve the Anglo-Irish agreement, the political realities will be well made clear to the people and the Government will pay the price for the error they are requiring us to make today.

[2329] This Government came to this House saying they had an amendment to propose to the Constitution. They came to the House without debating the issue in a formal way, with no White Paper and with no clear indication that the implications of what they were facing up to had been properly considered. I do not trust the advice the Government are receiving on this issue. It seems inadequate because it seems unable to show in any way in the speeches made yesterday by Ministers that they have an answer to the questions which have been put to them in this debate. Therefore, it was entirely wrong-minded to come thus to this House having given to the Press a diet of, “We will not change; we will not permit any amendment; we will not deflect from our course in any way no matter what is said in this House.” It is an insult to this House. I suppose this House has been insulted on many occasions, but it is worse than that. It shows a degree of robotic determination to make an error notwithstanding the clear indication of the damaging consequences that error will have.

This party in their attitude in this debate are determined to underline the extent of that error on every front and to make sure that the price when it comes to be paid by the people will also have to be endorsed, subscribed to and paid in the last analysis by the people who are politically responsible for this error.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  There is very little doubt as to the commitment of the vast majority of Members on both sides of this House to Europe. Much has been said about the benefits which have accrued to this State as a result of our membership of the European Community. Those benefits are not simply of a financial nature though they tend on occasion, possibly too often, to be defined in pounds as opposed to looking at other implications of our membership of the European Communities. Our membership of the European Communities has made us part of a Europe which is seeking to provide a major internal market, a Europe which [2330] sets down a philosophy by which it seeks to ensure that never again shall we experience the type of catastrophe which took place in Europe during the course of the Second World War. What we in this State tend to forget is that the original rationale for the framing of the European Communities was to bring together States which had been decimated by the Second World War and to provide for a form of reconciliation and economic integration which would make a repeat of that type of conflagration impossible.

The speeches we have heard from members of the Government to date clearly confirm the Government, the Fine Gael Party, the Progressive Democrats and also the Labour Party as being committed to the European ideal of maintaining our place in Europe and to playing a full part as a member of the European Communities. The speeches from Government Ministers are laudable to the extent that they appear to be the first salvoes in the referendum campaign to ensure that the majority of people voting in the referendum seek to endorse, within our Constitution, the amendment proposed by the Government to facilitate this State to ratify the Single European Act and in particular Title III of the Act which has been determined by the Supreme Court to have constitutional infirmities.

The debate in this House, in the context of this proposal, will be about the benefits of our membership of the European Communities as to whether we wish to continue to participate in the Community as progressive member intent on a developing community whilst the debate in opposition to the proposal will be effectively an action replay of the debate which took place in 1972 prior to the original Article 29 of our Constitution being amended. It is correct to say that the debate which is taking place outside this House and the proposal the Government have made have, so far, totally ignored the extraordinary implications of the decision delivered by the Supreme Court. In any other constitutional democracy in which there is a separation of powers such as is provided for in our [2331] Constitution the judgment of the Supreme Court would be seen not as one simply of relevance to our ratifying the Single European Act, not as one simply of relevance to whether we should remain a member of the European Community as part of a developing Community, but as one that gives rise to a constitutional crisis of considerable dimensions.

The Taoiseach yesterday correctly stated there was considerable surprise in many quarters at the judgment delivered by the majority of the members of the Supreme Court. When one sets aside some of the irrelevant party political debate which goes on in this House it would be correct to say that the Taoiseach and all members of his Government were as surprised and as taken aback by the judgment as were Members on this side of the House. Whereas some predictions were made by Members opposite and doubts raised about the constitutionality of the Single European Act prior to Christmas, no one focused on the possibility that the decision delivered by the Supreme Court relating to Title III of the Act would be delivered. There was no suggestion by the Supreme Court prior to this decision that they regarded themselves as playing an activist role in the area of foreign policy or that the courts regarded themselves as having a right to intervene in areas heretofore perceived as being confined to the executive area of Government.

It is a point worth dwelling on. What has happened in this judgment does not simply have implications for the Single European Act. It has very serious implications as to the capacity of the Government to conduct ordinary foreign relations and foreign affairs. It has serious implications for the capacity of Deputy Lenihan acting as Foreign Affairs Minister on behalf of the Government to enter into arrangements, or agreements, or treaties with any other state. Indeed Deputy Lenihan — and this has already been referred to by the previous speaker — got it right on radio——

[2332]An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Minister for Foreign Affairs.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  ——on Monday last when he referred to the serious difficulties this judgment created in the general area of foreign affairs. He made reference, as the Taoiseach has done, to the original intention of the then President de Valera, one of the principal architects of our Constitution, to keep the courts out of the area of foreign affairs. The fact that Deputy Lenihan——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Minister.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  ——the Minister for Foreign Affairs, sees this as a problem renders it more peculiar that the Government appear to be intent on avoiding confronting it. There is no rational reason for not confronting it and taking on the issue at this stage. If the Minister for Foreign Affairs perceives it as a problem and if the Taoiseach perceives it as a problem — as he hints he does in his speech — why are we avoiding the problem? Why is this House abdicating its responsibilities? In this area I suggest we are doing something quite different from what we usually do. On occasions we stick our heads in the sand when major issues of a social nature arise which are perceived as controversial. We are now committing the ultimate parliamentary sin of abdicating our role as legislators to tackle a major constitutional infirmity. We are accepting that it is not this House to which the Government of the day and the executive of this State are responsible in the conduct of foreign affairs but it is the Supreme Court who will be the final arbitrators of the way the Government behave. The conduct of foreign affairs in this way was never envisaged at the time of the enactment of our Constitution. I have no doubt in a similar situation in the United States there would be a very major constitutional crisis perceived as taking place if, in certain areas where the President exercises executive authority in the conduct of foreign affairs, the Supreme [2333] Court arrogated to itself the right to control that behaviour as opposed to the House of Representatives and the Senate so doing.

There is an essential thread which operates through our Constitution. We operate a system of Government based on the concept of a tripartite separation of powers of Government with what could be described as an entrenched system of checks and balances. We have an executive which is the Government effectively responsible to a Legislature being the Dáil and Seanad, the two main Houses of the Oireachtas. We have the judicial powers of Government vested in the courts. Article 6 of our Constitution clearly sets out the tripartite system, the separation and division of powers. The later articles of the Constitution provide for a system of checks and balances which seeks to protect parliamentary democracy and ensure the protection of individual civil liberties and civil rights. Under Article 15 of the Constitution the Oireachtas is charged with the sole and exclusive power of making laws for the State. In doing so, however, it may not enact any law which is in any respect repugnant to the Constitution. Any law enacted that is repugnant to the Constitution under subsection 2 of Article 15.4 is regarded as being invalid.

Effectively, the courts are conferred with express constitutional jurisdiction to delimit the behaviour of the legislator, the Oireachtas and in a sense also the behaviour of Government in two explicit areas. If a Bill goes to the President for signing, the President may consult with the Council of State and if the President is concerned that there may be some constitutional infirmity in that Bill, under Article 26 of the Constitution it may be referred by him to the Supreme Court for a determination as to whether “such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution”.

Other than Bills, the courts may review legislation passed by this House, or legislation that was passed prior to 1922 by the Imperial Parliament, with a view to testing its constitutionality. The powers [2334] of constitutional review are explicitly laid down in the Constitution and are explicitly delimited. The power of constitutional review is conferred expressly on the High Court by Article 34.3.2º in which it is said to “extend to the question of the validity of any law having regard to provisions of this Constitution,”. The power of constitutional review is expressly stated to apply to laws under Article 34 and to Bills under Article 26.

No mention is made of any power vested in the courts to review under the Constitution the conduct of foreign relations. I do not believe it was ever envisaged that the courts would have such powers to review foreign relations, save so as to ensure that the Government and this House abide by the explicit controls stipulated in the conduct of foreign affairs in Articles 28 and 29. Articles 28 and 29 clearly envisage that the Government, acting as the executive power of the State, shall in the area of foreign affairs conduct the business of Government. Article 28 provides that the executive power of the State shall, subject to the provisions of the Constitution, be exercised by or on the authority of the Government. That Article expressly provides for declarations of war and the role of the Oireachtas, in effect, in ensuring that declarations of war are not made without the assent of the Oireachtas. It does not require the assent of the court.

It seems that the sole area of judicial review in that context relates to ensuring that the Executive explicitly and expressly complies with the limitations provided within the Constitution. Article 29 affirms in the area of foreign affairs that the “executive power of the State in or in connection with its external relations shall ... be exercised by or on the authority of the Government”. It is quite clear that it is the expressly stated view of the Constitution that in the area of foreign affairs the executive powers of the State are to be operated in accordance with Article 29.4.1º by the Government.

There are certain delimitations described in Article 29 to which other speakers have referred, such as subsection [2335] 5 of that Article which provides that every international agreement to which the State becomes a party shall be laid before Dáil Éireann. It also provides that the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann. It goes on to say that that section shall not apply to agreements or conventions of a tactical and administrative character. Subsection 6 provides that no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. It was always the view, until this judgment, that in order for the courts to review any international agreement to which we were a party, such agreement would have to become part of the domestic law of the State as prescribed under Article 26.

The system of checks and balances which we operate ensures that the courts have a role in the area of constitutional rights. Governments on occasion resent the intervention of the courts when the courts seek to review legislation passed through this House sponsored by the Government. The courts, nevertheless, are conferred by the Constitution with an express duty to ensure the protection of civil rights and civil liberties. The system of checks and balances we operate has successfully done that, by and large, and has created what I would describe as a natural tension between Government, the Oireachtas and the courts. It is a constructive tension that is to be found operating within a number of democratic countries all of whom have a parliamentary system such as ours and who are subject to a written Constitution with a court system empowered to protect rights under that Constitution.

The courts have a constitutional obligation to ensure that the constitutional and personal rights of the individual are fully protected. The High Court and the Supreme Court under the Constitution provide protection for minorities the political organs of this State may overlook or choose to ignore. Indeed, it has been [2336] said by some writers that in a sense the courts on occasion can be in a better position to protect the position of minorities than may be a democratically elected Parliament whose Government are in office and subject to the whim of the majority.

There have been very clear examples of where the courts have intervened to protect rights which this Parliament have been unwilling to confer. There is the famous judgment of Byrne versus Ireland where the right to sue the State was confirmed by the Supreme Court in a now famous judgment by Mr. Justice Walsh. In McGee versus Ireland the right to marital privacy, the right of married couples to have access to forms of family planning and to contraceptives, was asserted by the Supreme Court at a time when this House was ducking the issue and unwilling to confront it.

Those who interpret the Constitution, however, do not do so in a vacuum, in a sort of legal limbo cut off from society. That is something which is often forgotten. Judges called upon to interpret and enforce the Constitution cannot avoid on occasion making choices between competing social and political values and competing constitutional rights. Examples of that can be seen in many judgments delivered by the Supreme Court, some of a controversial nature, but some of not so controversial a nature where on occasion five judges have sat and there have been 3-2 decisions, as there has been in the Crotty case where two judges sitting in the Supreme Court have relied on the Constitution to articulate one view while three judges have articulated a different view. It has happened on numerous occasions. A classic example where a conflict of views occurred between members of the Supreme Court in an area of controversy unrelated to foreign affairs was in the Norris case where two judges took the view that there was a right to privacy which rendered unconstitutional laws affecting homosexual conduct and three judges took the view that the Constitution, in fact, supported those laws.

[2337] The point that needs to be understood is that judges analysing the Constitution are not analysing a document that has only one method of interpretation, tablets of stone that are not open to different and possibly multiple interpretations. There can be varying opinions as to what different Articles in the Constitution mean. The range of opinion among judges, scholars and lawyers on supposedly settled issues of constitutional law can be so broad as to make it impossible to determine where the boundaries lie. The Pandora's box that has been opened by the judgment of the Supreme Court in Crotty creates an area of possible future judicial activity and intervention that makes it impossible for Members of this House to know where the boundaries lie. It makes it impossible for Members to know and it renders it impossible for Government to conduct the ordinary business of Government in the area of foreign affairs. It should not be forgotten that our courts, including the Supreme Court, and in particular the Supreme Court in the area of constitutional interpretation have had a profound influence on our society and its development as have many laws passed through this House.

In the area of constitutional law and constitutional interpretation it is essential that this House abides by its constitutional obligations, but that the courts also define the parameters of their sphere of action. I have referred already to there being a natural tension between the courts and the Legislature. The Legislature in the conduct of its business must operate within parameters that do not divest citizens of their fundamental rights. In this sense the courts ensure that the Oireachtas operates within parameters some of which are newly articulated by the courts and are taken as being implicit in the Constitution. Many of these have been judicially declared but were not expressly referred to or articulated by President de Valera or any of the people who sat in this House to debate the 1937 Constitution prior to the holding of a referendum in 1937.

The courts can play a positive role in [2338] the area of constitutional review, in protecting rights, but what the courts need to recognise is that sometimes they can best guarantee our rights by deferring to rather than overruling the Executive powers of the State. Whereas the courts are well qualified to protect the rights of individual citizens under the Constitution, they are not competent to supervise the conduct of foreign policy. The effect of the Supreme Court judgment is to make the Government of this State political eunuchs in the area of foreign policy; it is to divest the Government of the role that has been played by every Government in this State since its foundation and to place every act of Government in the area of foreign policy subject to judicial review as to whether the behaviour of a Government in any area could be regarded as derogating in some way from what I would describe as a very narrow and artificially defined judicial concept of sovereignty. What the courts are doing by this judgment is abrogating to themselves the power to control Government, when that power was expressedly conferred by the Constitution on the people through the election to this House of Members of the Oireachtas.

One organ of State is not entitled to take to itself the exercise of all powers of Government. The Supreme Court now is in danger of doing so in this area. It has crossed the threshold into an area beyond the proper domain of the courts. It is interesting in this context to note that when previously called upon to cross into that domain, the courts desisted from doing so in the case of Boland v. An Taoiseach, which is in the 1974 Irish Reports — the case brought by Mr. Boland relating to the Sunningdale Agreement. Mr. Justice Murnaghan in the High Court in that case stated:

In my opinion, it would not be consonant with what has been described as the “checks and balances” contained in the Constitution, in relation to the three organs of State mentioned in Article 6, s. 1, of the Constitution, that this Court should purport to usurp the [2339] functions of Dáil Éireann; I am far from convinced that this Court should concern itself with a declaration of policy by the Government which, in itself, cannot affect the legal rights of any citizen.

In that case Mr. Boland alleged that the Sunningdale Agreement should be constitutionally reviewed by the courts and the courts refused to take on board that approach. In the Supreme Court in that case the then Chief Justice Fitzgerald said:

... the Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.

Mr. Justice Budd in the same case stated:

It is for the Executive to formulate matters of policy. The judiciary has its own particular ambit of functions under the Constitution. Mainly, it deals with justiciable controversies between citizen and citizen or the citizen and the State and matters pertaining thereto. Such matters have nothing to do with matters of State policy. Viewing the matter from another angle, as to the nature of any relief that could properly be claimed in proceedings of this nature, I ask whether it could be said that the Courts could be called upon to pronounce adversely or otherwise on what the Government proposed to do on any matter of policy which it was in course of formulating. It would seem that that would be an attempted interference with matters which are part of the functions of the Executive and no part of the functions of the judiciary. From a practical standpoint alone, what action would be open to the Courts? The Courts could clearly not state that any particular policy ought not to be pursued.

[2340] He continues by saying:

The Constitution goes further in indicating how far the policies involved in government decisions as to policy such as this are removed from the purview of the Courts in that it makes the Government responsible to the Dáil which can support or oppose those policies and review them.

There is a similar judgment and a similar statement recognising the need for a division of powers and the need for judicial restraint in the area of foreign policy in the view expressed by Mr. Justice Griffin who stated that the articles of the Constitution to which I have referred:

demonstrate that the Oireachtas, and the Oireachtas alone, can exercise the legislative power of government; that the Government, and the Government alone, can exercise the executive power of government; and that the judicial power of government can be exercised only by judges duly appointed under the Constitution in courts established by law under the Constitution. As the Oireachtas is prohibited from enacting any law which is in any respect repugnant to the Constitution or any provision thereof, the question of the validity of any law having regard to the provisions of the Constitution is reserved to the High Court and the Supreme Court. This is not, however, in any respect an interference by the judicial power in the exercise by the Oireachtas of the legislative power.

By the Constitution the Government is expressly made responsible to Dáil Éireann:

He goes on to say that in his view the Sunningdale Agreement was not something that could be reviewed properly by the courts.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Deputy is making very long quotations. I would remind him that there is a time limit on this debate.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  The point to be made is [2341] that judges have choices. The Constitution is not a black and white document. There is not a simple perfect interpretation of each article in it. There is a choice between judicial intervention and non-intervention and it would seem clear that the decision that has been reached by the majority of the court in this case poses a serious threat to the constitutional balance with reference to the powers of Government operated to date in this State and as were perceived to be operational until this judgment was delivered. As a matter of policy the courts should have no role in the conduct of foreign relations. Our foreign policy will become a shambles unless we address this issue. The Government should be and have been properly criticised for their failure to confront the central issue. The problem has arisen with reference to Title III of the Single European Act. The problem is not confined to Title III of the Single European Act but travels far beyond the provisions of that Act.

The judgment is one that creates all sorts of anomalies in the conduct of foreign affairs. For example, it appears from the judgment that European political co-operation, as it has operated and developed since we joined the Community, at this stage, according to the judgment, is not open to examination. It was perceived as an informal arrangement that the courts could not look into. At what stage the informal arrangement becomes a formal arrangement that the courts can look into is a matter of some mystery. Clearly, according to the majority judgment, if we put down in writing with foreign States what it is we intend to co-operate about, that is reviewable by the courts. Therefore, there is the constitutional anomaly whereby the Government can conduct secret foreign relations, and they can engage in unwritten, spoken agreements with other States as to the conduct of foreign policy in areas of major significance to this State.

Provided those foreign policies are unwritten and unpublished, provided they are kept in what could be described the verbal area they are not open to [2342] review by the courts. But, as soon as they are put down in writing, any treaty put down in writing to which this State is a party to date, or to which it will become a party in the future, will be subject to a judicial review to determine whether, in some way, the entering into that treaty has affected our sovereignty. The reality is, though the Supreme Court majority judgment attempts to draw some distinction in this area, that whenever a State enters into any treaty of any nature whatsoever, to some extent it is losing a small portion of its sovereignty while, to another extent, it may be gaining powers in areas in which heretofore it had no direct input.

Let us take the example of a very simple arrangement. This country has entered into double taxation agreements with Britain to ensure that people who work both in this State and in England, Wales or Scotland — whose work necessitates their living part of the time in Ireland and part of the time across the water, or who reside part of the time here and part of the time across the water — are not subjected to double taxation. Could one argue that in some way that impedes our sovereignty or is it that because that is a single issue it is something the Government are entitled to enter into?

Reference has already been made to the United Nations. The former Taoiseach, Dr. Garret FitzGerald, last evening quoted certain Articles from the United Nations Charter. Under this judgment it would seem to me that clearly we can no longer be party to Chapter VII of the Charter, a number of Articles under which Chapter provide for this State to implement decisions taken by the Security Council. Does that not also impinge seriously on our sovereignty? Could it not also be said that other Articles of this United Nations Charter also impinge on our sovereignty to the extent of even some of the declarations relating to the purposes of the United Nations which could be regarded as impinging on our sovereignty? For example, paragraph 3 of Article I says:

To achieve international co-operation [2343] in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and——

That is one of the purposes of the United Nations. Someone might ask: is it not the sovereign right of this State, in its foreign policy, to discriminate against people on the basis of race or religion? Should we not preserve that aspect of our sovereignty? Can we, for all time, transfer that aspect of our sovereignty in some way, or abrogate it, by being party to the United Nations Charter?

Other aspects of the Charter could also be called into question. For example, Article 24, paragraph 1 says:

In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

If we get it into our heads that, in exercise of our sovereign powers, we want to carry out operations of an international nature to secure the maintenance of peace and security, are we then subject to the whims of the Security Council, or can we do it independently?

It is essential to acknowledge the extent of the impact of this Supreme Court majority judgment on the conduct of Government in the area of foreign relations. I have already pointed out the ludicrous situation whereby, if this State conducts foreign relations and acts in concert with any other group of nations but does not apparently do so under a written treaty, that may not be examined by the Supreme Court but, if it is in writing, it can be. For example, the Government of this State could get on a plane tomorrow morning and land in Moscow. They could [2344] shake hands with members of the Politburo, pledging allegiance to it, fly back to Ireland announcing that, in future, they are going to co-operate in our foreign policy and co-ordinate it with that of the Union of Soviet Socialist Republics, they are doing it under an oral agreement, they will not put it in writing. On the basis of this judgment that is not reviewable by the courts though some people might think it should be. On the basis of this judgment, though, if it was in writing it would be reviewable by the courts as transferring our sovereignty. What is the logical or the constitutional sense in that? I find it very difficult to explain.

The impact of the judgment becomes even more mysterious when one examines the language of what is being discussed. In the Boland case relating to Sunningdale the courts held that the Sunningdale Agreement was merely a communiqué, that a communique was not reviewable by the courts; it was a declaration of intent by its signatories. It was stated simply as not being a treaty; it was a communiqué. Mr. Justice Walsh in the Supreme Court judgment in the Crotty case says, of course, he agrees with Boland, that communiqués are not reviewable, that agreements only are reviewable. We now know that oral arrangements or communiqués are not reviewable. The problem is: when is an agreement a treaty? When is a communiqué an agreement? Where are the boundaries of judicial review?

Views have been expressed about the Anglo-Irish Agreement. It is quite possible in this House currently to validly express conflicting views as to the constitutionality of the Anglo-Irish Agreement as a result of this judgment. It is possible to do so because the boundaries and parameters of what the Supreme Court regard as their role in the area of foreign affairs have not been set. Just as it is valid for Deputies Desmond O'Malley and McDowell to suggest that the Anglo-Irish Agreement may be constitutionally infirm, it is correct to suggest that a constitutional action can validly be brought to test whether it is constitutionally [2345] infirm. I have a view that the Anglo-Irish Agreement is constitutionally in order because of the preservation of sovereignty expressly referred to in Article 2 of the agreement.

The point that needs to be made in the context of this debate is that this judgment has opened up a hornet's nest of difficulties and nobody can predict totally correctly where it will lead. But one can say correctly, without any fear of contradiction from the Government side, that it has created a vast problem in the conduct of foreign relations and foreign affairs. It is a problem requiring resolution. It is one that should be resolved in this constitutional referendum that is to take place. It is not a problem that should be postponed.

In his statement the Taoiseach referred to that problem, referred also to his having discussions on this problem with other parties after the referendum was over. He suggested that if a wider constitutional amendment was placed before the people on this occasion it could give rise to divisiveness and difficulties. I do not believe that is a correct judgment of the position. If the electorate were asked a very simple question: do you believe that the Government of the day, in the conduct of foreign affairs, should be responsible ultimately for their behaviour to the Oireachtas and to the Members of the Oireachtas, democratically elected by the people, or do you think the Government of the day should be responsible to the appointed five or six members of the Supreme Court in their conduct of foreign affairs, I suspect the vast majority of people would take the view that the Government of the day should be responsible to the Oireachtas. If the people do not like what the Government are doing in the area of foreign affairs they can throw them out in the next election. If they do not like what members of the Supreme Court are doing in the area of foreign affairs there is absolutely nothing they can do about it. The difficulty that arises from the Crotty judgment should not be postponed. It should be confronted [2346] in this referendum. I see no reason why it should not be confronted.

Two difficulties arise with regard to the Crotty judgment, apart from the Single European Act. The first difficulty relates to existing treaties. The Taoiseach is on record, both prior to the recent election and subsequent to it, as saying that it has been part of the policy of successive Governments of the State on assuming office to abide by treaty arrangements to which the State is a party. I assume, therefore, that it is the express wish of the Government to ensure that all existing agreements, including the Anglo-Irish Agreement, are perceived as remaining in force, as being valid and as agreements to which this State is party and which will be honoured by the State in the form of the current Government in their conduct of foreign relations. If it is assumed that the Government intend to abide by all existing treaties and agreements to which the State is a party, I fail to understand how it is a matter of public difficulty or controversy to provide for an express article in the Constitution which copperfastens the constitutionality of all such treaties and articles so as to ensure that we do not have going through our courts in the coming months a plethora of different actions brought by different people who have bees in their bonnets about some individual treaty they do not like.

The second difficulty is the future conduct of foreign relations. I equally assume that it is the intention of the Government in their conduct of foreign relations and in their responsibility in this House to honour any future agreement or treaty to which we may become signatories. I assume it is the intention of the Government, if there are financial charges arising from such treaties, to bring such matters before this House in accordance with the provisions of Article 29 and then, if approved by this House and ratified, they would be abided by so far as the Government are concerned. I presume the Government do not wish to be in a position where every time they enter into or intend to enter into a treaty they will have to bring some declaratory action before the Irish High Court and ultimately the [2347] Supreme Court to find out if the judges in the courts are willing to agree to allow the Government to enter into a treaty, even if every Member of this House has already voted for it. The Government should be responsible to the Dáil. That is the view of the vast majority of people outside this House.

There are two simple net issues. If the Government are bona fide on their commitment to operate existing treaties and if they wish to present themselves in the conduct of foreign policy as a Government with the capacity to enter into international agreements in the future, it is essential that a wider and broader amendment be introduced to implement what we all understood to be the constitutional position until this judgment was made. With regard to the Crotty judgment it seems that Mr. Justice Griffin and the Chief Justice, Judge Finlay, in their judgment very eloquently recognised the importance of preserving separation of powers under the Constitution and recognised ultimately that the democratic rights of the individual were far better protected by the Government of the day being responsible to the Oireachtas in the conduct of foreign policy than they would be if the Government were responsible to the courts. It is recognised equally that the courts very well protect individual citizens in the area of civil rights against encroachment by the Government of the day.

In the context of the Crotty judgment another point is also worth making. It has been made to date by two speakers but there is an angle to it which seems to have gone unnoticed. In my opening remarks I said that Constitutions are not interpreted in a vacuum, that judges bring to those Constitutions their perceptions and their views of society, the values of society and their own personal values. Mr. Justice Walsh in the Supreme Court and former Chief Justice O'Higgins, too, recognised this when they expressly stated in a number of cases, including the McGee case, that judges views can change as times pass in the light of the views expressed by contemporary society [2348] and the values of that society within the constitutional framework in which they operate.

We will have a referendum on this issue almost by judicial accident because no one knows whether the decisions made would have been different if the Supreme Court were differently composed. It has been mentioned already that of the eight judges who heard the Crotty proceedings, three in the High Court and five in the Supreme Court, five came down in favour of constitutionality and three against it. In the High Court the judges dismissed the idea of even reviewing Title III. They took the view that the court had no role in that area. Mr. Justice Griffin and Chief Justice Finlay also took that view in the Supreme Court. However, the curious nature of this exercise which has implications in the area of foreign affairs can be further examined. It has been remarked already that if Mr. Justice Hamilton who is President of the High Court and is an ex officio member of the Supreme Court had been sitting on the Supreme Court instead of one of the members of the majority, the decision would have gone the other way.

The Supreme Court currently has six members. In addition to the five who sat in this case Mr. Justice McCarthy is also a member of the Supreme Court. There can be any combination of those six Supreme Court judges sitting on any individual constitutional case. One wonders if Mr. Justice McCarthy had sat in this case instead of three of the members who were in the majority or if, say, he sits in a later case to be determined in six months time on a similar issue, whether there would be opposite result. That is interesting and not simply for academic speculation or to try to make some sort of political point as to whether the courts were right or wrong. What is of relevance is the following; if all future Government conduct in the area of foreign affairs is to be reviewed by the Supreme Court it will not always in the future be reviewed by the same five individual judges who have the same perspective on life and who will all take similar views to the views expressed in this case. There could be a [2349] varied and differing approach to individual treaties and agreements depending on the composition of the court on the day the issue came before it. In a sense what we will have is not merely a Government seeking to exercise their authority in the area of foreign affairs subject to the review by a fixed court; we will have a Government seeking to exercise their activities in the area of foreign affairs and whose decisions may ultimately be determined to be valid or invalid depending on which personalities are sitting in the court on the day in question. In essence our conduct of foreign affairs will descend into a game of judicial roulette. That is not the way for a sovereign democratic nation to conduct foreign relationships.

In the area of neutrality there seems to be considerable confusion in this country. This confusion does not just apply to people outside this House, it applies to Members and to parties of this House. The shifting sands of Irish neutrality have prescribed many different forms of neutrality to which we have been committed in the years since it was first articulated. It seems that those shifting sands have shifted even further in the declaration submitted to this House by the Taoiseach. In the forties, during the Second World War, we had what I would describe as a pragmatic neutrality. It was not just a military neutrality, it was a neutrality of a political and a military nature. It was a pragmatic decision taken by the then Taoiseach, Mr. de Valera, on the basis of what was perceived to be in the interest of this State some years after it had attained independence, had been involved in a difficult civil war and had been at odds with England for many years; it was a neutrality born of a resentment that the fourth green field, the province of Ulster, was not part and parcel of this State and a perception that there would be divisions in this country if we went to war on the side of England against Germany. But to describe it as a high moral point in the history of this State is something which would be looked on with shock in every country other than Ireland.

Two other speakers referred to the [2350] morality of that concept of neutrality. I wonder how many of us would look back with pride in this State at the concept of neutrality which dictated that this State remain on the sidelines while millions of people died in concentration camps. Was that a high moral position for any State to adopt during a major worldwide conflagration? It should be understood that in the forties we had what I would describe as a pragmatic neutrality born as much of domestic problems as international perceptions, and which was not defined in the narrower sense of military neutrality in the way we are discussing it today. I do not believe it is a high moral decision in the way it has ever been articulated in this House at any stage. In saying that I am expressing a personal view on that issue.

I agree with the idea that this State should be militarily neutral and I welcome the fact that we are getting down to the bones of finally trying to define the real meaning of Irish neutrality, which is that we are not part of any military pact, we are not part of NATO. We are saying we want to stand outside all these pacts and be able to express an independent view of the world. But all too often that view has been based on burying our heads in the sand rather than playing an activist role on the world stage. There are major exceptions to that statement. Former Foreign Ministers, such as Mr. Aiken and Deputy Dr. FitzGerald, played major roles on the international stage and on occasion all have played roles seeking to bring about peace in the world and a good deal less militarism.

It is nonsense that, if the Head of this State meets with President Mitterand or Mrs. Thatcher, or any other Head of State for dinner, he cannot even say that the number of nuclear warheads in Europe should be reduced. The perception is that it would in some way be impinging on our neutral position if he were even to express that point of view. It is all right if we express this view in the United Nations or at CSCE meetings, but I fail to understand why as a State and as part of the European Community we cannot play an active role when talking to our partners and encouraging them to [2351] take whatever steps they can to reduce the level of nuclear warheads on mainland Europe as a whole. We have a very strange and artificial concept of what our neutrality is about, even the concept of military neutrality. Let us be aggressively against nuclear war and in favour of reducing nuclear warheads. Let us encourage the type of discussions which took place in Reykjavik between President Reagan and Mr. Gorbachev to reduce the level of nuclear danger posed to the world.

Why is it all right to raise these issues in the United Nations while it appears to be a reserved political sin which impinges on our neutrality to discuss these issues from a militarily neutral position with our colleagues in Europe? I do not understand the logic in that argument. It appears that instead of the State playing a positive role in advocating neutrality, it is abdicating a role it could play better than it does on the international stage.

There are a number of lessons to be learned from what has happened with reference to the Single European Act. The first thing we must do is to ensure not only that the Constitution referendum copperfastens the constitutionality of our participation in European political co-operation, but also the validity of existing treaties and the capacity of the Government to enter into future treaties. There is a need to ensure that the executive branch of Government can engage in conduct which is usual and normal in international relations. I would ask the Government to consider tabling the appropriate amendments to the Constitution Bill for the Committee Stage.

This should not be seen as the type of debate we too often see in this House where the Government put up a legislative measure which they feel they must push through the House because if it is not passed unchanged, they are in some way seen as being weak, uncommitted, dithering or uncertain. That is not what this debate is about. This has been a debate on the powers of this House, the powers of Government and the way we [2352] perceive our constitutional democracy operating. This debate has been about teasing out the implications of a complex area of constitutional law in the context of conflicting views being expressed by different Supreme Court judges at different times. For example, I have no doubt that if the court which sat and heard the Boland case had sat and heard the case of the Single European Act, the result would have been very different. It is very interesting to note that the only survivor of the Boland court which reached a majority view is Mr. Justice Griffin, who is in the minority in the case of the Single European Act.

We in this House, have sought responsibly, without making party political points — although I regret on occasion that there has been an unnecessary bouncing of political party balls — to tease out the implications of this judgment. I believe the implications of this judgment have only become apparent as the days passed and it was examined in detail. It would be no criticism of this Government, having heard the views of this House and having debated the issue, if they were to agree to introduce amendments which would allow them to operate properly in the area of foreign policy because at the end of the day, and in the short term, it is this Government who will benefit from that proposal. There is no hidden political pothole into which the Government will fall if they approach matters in that way. No speaker on any side of the House has suggested that a trap is being laid for the Government which, in the event of their agreeing to a broader referendum, will ensnare them.

All the comments made have been designed to protect the constitutional system of checks and balances which we operate and to preserve a concept of constitutional democracy under which the Executive of the State is responsible to this House for the conduct of foreign relations. I ask the Government to seriously consider addressing this issue properly on Committee Stage by tabling the necessary amendments. I ask them in particular to do so in the light of Deputy [2353] Lenihan's own expressed views in this area. I will be very interested to hear — when Deputy Lenihan contributes to the debate — why his expressed views in this area are not apparently being implemented.

The first lesson is that we must now constitutionally resolve all the problems that have arisen. There is also another lesson to be learned in regard to this decision. The Taoiseach referred to the need to look at the way the State has operated in the EC and to the fact that he intends to ask the NESC to carry out an in-depth study of Ireland's comparative performance in the EC and to relate it to some of the problems and opportunities we would face in realising the internal market.

I have long held the view that the manner in which this House deals with foreign relations is inept, ad hoc and inappropriate in the context of the constitutional powers conferred on this House. I have also long held the view that there is a need for a special foreign policy committee of the House which would be directly involved in the development of foreign policy, in direct dialogue with the Foreign Minister of the day, which would seek to tease out concepts such as the meaning of Irish neutrality and which would be deployed and have the capacity to carry out the type of in-depth study that the Taoiseach feels obliged to ask the NESC — a body outside this House — to carry out because there is no committee of the House competent to carry out such an operation.

We are one of the few Parliaments in Europe which does not have a specialist committee in the area of foreign affairs that seeks to develop foreign policy and to review decisions made in the area of foreign policy. In the context of the debate on the Single European Act, such a committee could have played a far greater role than was played by any of the committees of this House in the previous Dáil. The only occasion on which we debate foreign policy in this House is after meetings of Heads of State of the EC and when Ministers return from Council meetings with Ministers of other States or when emergencies arise, such [2354] as today. We should not simply debate foreign policy matters on a fire brigade basis. There should be a permanent committee of this House which would play a significant and real role in this area. I urge the Government to appoint such a committee.

The judgment and the difficulties it throws up copperfasten the need to have a committee to review the Constitution generally and to look at how it operates in practice, not just in theory, in the 50th year of its enactment. The work that should be done by that committee is immense; it will take a considerable time and the very succinct and constitutional issues thrown up by the Crotty judgment in the conduct of foreign affairs can be and should be fully and promptly dealt with and remedied by a referendum to be held next month. They can be dealt with over the next few weeks and do not require to be left over for future deliberations between the leaders of the various parties or by a committee to review the Constitution.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  After that lengthy and detailed contribution from my constituency colleague, I assure the House that mine will be very brief because I appreciate that time is limited and that many Deputies would like to make their feelings known.

My contribution will be based on personal feelings and observations in this debate. We are faced with a stark choice and for many of us a painful choice. Most Irish people are happy enough to be called Europeans. They are content, even willing, to participate in the great experiment of drawing together the ancient and diverse cultures and traditions which make up our Continent. Some of us, in our more reflective moments, would even look to a future in which all of us — not just Western democracies — are drawn together into a great federation of mutual support and common interest.

However, that day is some way off and, in the meantime, we are called upon to take a step in the direction of that goal. We will not achieve anything without [2355] some cost to our ideals and interests. It is essential to recognise that many people have genuine reservations about what we are being asked to do in supporting the Single European Act. A sacrifice is, undoubtedly, being asked of us and it is perhaps greater in content and degree than that required from our 11 partners. We are not as secure in our independence as many of our partners and we have not yet achieved the great degree of national self-confidence which grows out of generations of independence. We are not fully certain of the place we occupy now or may occupy in the years ahead in the fraternity of nations which make up the Community.

We are, and wish to remain, a neutral country removed from the military power blocs which dominate and threaten the lives of all the people of Europe. In this context, I welcome the declaration by the Government with regard to Ireland's long established policy of military neutrality. We see our role as that of a country, chastened by the experience of its own history, to abhor war and to seek instead to respect the right of people to be what they want to be without threat or coercion.

I, with many other members of all parties, feel a degree of apprehension about our ability as a nation to continue in that role. I have genuine fears that our freedom to assert our chosen policies at the United Nations may be undermined by this Act. I fear that our credibility and standing before the non-aligned nations as a truly independent European voice calling for fair play and justice will be lessened as a result of our closer absorption into the European Community. Ireland's role as a European nation can, because of the shared experience of our past, find common cause with the young nations of black Africa and with the peoples of Latin America and Asia who are struggling to gain control of their own countries. We can play a unique role in world affairs and we must value and preserve it, whatever else we may have to sacrifice, in making this decision. Our own and future Governments have a [2356] solemn duty to take cognisance of these reservations and to be ever vigilant in ensuring that we do not some day find ourselves a party to decisions which are offensive to the wishes of the people.

We need to place clearly on the record of the House and in the assemblies of Europe the fact that we are a free people and will continue to be free. It is easy, even convenient, for larger nations of the Community to overlook the fact that mere size alone will not be the determining factor when important decisions have to be made. We have played our part as fairly as any other nation in contributing to the success of the Community. Our Ministers and officials have generally done a good job in balancing the needs and interests of our country with the wider, more general ideal of fostering the life and vitality of the Community. The Single European Act will make it a little more difficult for our Government and officials to maintain that balance, but maintain it we must. Furthermore, it is the duty of all the Members of this House to ensure that they have both the comfort of our support and the threat of our censure as they go about their task.

Our future lies in Europe. It is inconceivable that we could find a role for ourselves other than as a member of the Community. We do not have any viable option except to be part of the Community. Our economic and political place in Europe is as fixed as our geographical location. As with our geographical location we may sometimes find that our economic and political interests are somewhat removed from main stream Community thinking. We are Community members as of right by our own free choice. With confidence, with self esteem and persistence we will continue to make our distinctive voice heard and respected by our partners and continue to promote and protect the interests of our country.

In conclusion I want it to go from this sovereign parliament that we are and will continue to be Europeans so long as it remains in our interest to be Europeans; so long as it remains in Europe's interest [2357] for us to be Europeans and for as long as we can be Irish as well as Europeans.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I will be fairly brief in what I have to say concerning the proposed legislation which will enable a constitutional referendum to take place as a consequence of what has been referred to rather frequently in the debate as the “Crotty decision”. At times I find myself at a certain disadvantage, perhaps due to my lack of legal training, to decide exactly what it is we are debating. Sometimes during this debate it appears that we are debating Mr. Crotty's case as stated before the Supreme Court. At other times it appears that we are debating the membership of the Supreme Court and the balance of personalities within the Supreme Court. At other times it appears that we are debating our huff with the Supreme Court at having taken a decision which is unattractive to the majority of both Houses of the Oireachtas. Occasionally it surfaced that we might be debating the Single European Act in a new light consequent upon the majority decision which has led to the recall of the Dáil. I feel there is some justification for deciding that we are debating the latter in view of the wording which the Government have placed before us which is:

The State may ratify the Single European Act (signed on behalf of the Member States of the Communities at Luxembourg on the 17th day of February, 1986, and at The Hague on the 28th day of February, 1986).

That is an inescapable invitation to debate how parliament and the Irish people should consider the Single European Act. It is so because the two dates referred to, 17 and 28 February, 1986, precede a debate in this House.

The debate in this House took place at the end of 1986. I was a member of the Seanad at the time and I recall very clearly that we began our debate on 17 December. On 3 December a major report had been produced — Report No. 34 of the Joint Committee on the Secondary [2358] Legislation of the European Communities — which had been signed by the now Minister for Justice, Deputy Gerard Collins, on 3 December. The Minister for Foreign Affairs of the day in opening his speech said that we had had an extensive debate on the Single European Act.

Being of a somewhat cynical disposition, I worried what cultural metamorphosis had taken place that it enabled the entire country to be electrified into intellectual and stimulating debate on a matter of such great complexity and to have it exhausted within 14 days. Such an observation did not impress anybody. A week earlier on 10 December 1986, in Seanad Éireann — Seanad Official Report, Volume 15, columns 757-58 — I proposed that a foreign policy committee be set up who would be accountable to both Houses of the Oireachtas and who would be able to discuss the European political co-operation process and other matters. I welcome the conversion that has taken place in this House towards this idea because on that occasion those who voted for the committee were the Labour Party members of the Seanad, supported by the university Senators. The Fine Gael Party in their entirely voted against the proposal after a very thorough and inspiring speech in many ways by the former Minister for Foreign Affairs, Professor Dooge. The Fianna Fáil Party abstained from voting. The enthusiasm which has developed for a foreign affairs committee since December 1986 is very welcome. I find conversions useful and it would be wrong for us to be carrying a great burden of consistency on our backs that would make us less able to respond to the realities of the day.

In the debate so far one point of concentration which seems to have emerged more than any other is that this judgment is going to affect Irish foreign policy and that it will affect it retrospectively. I am impressed by the arguments put forward by those who list the agreements that are affected and, in particular, there is force in the argument of the similarity between the Anglo-Irish Agreement and Article [2359] 3 of the Single European Act. If the distinction between political and legal obligation has been struck down by the court in its decision in the case of the Single European Act, it was that very distinction which enabled the Anglo-Irish Agreement to be sustained in terms of the discussion which took place on it at the time. It would appear from the contributions in relation to foreign policy that there is a current implication in so far as that what we do now is affected by the decision and there is a future implication also. I find rather interesting the statement made by the Taoiseach in his speech where he lists, in his usual thorough way, a series of steps that he took following the announcement of the Supreme Court decision. He stated:

Fourthly, I wish to invite the leaders of the other parties in Dáil Éireann after the Referendum has taken place to discuss the wider implications of the judgment on the ability of the government of the day to conduct foreign policy and to consider what further action if any might be undertaken.

What will take place at these discussions? Going back to my original restructuring of the debate, will the Taoiseach begin by expressing his extreme annoyance at individual members, groups of members, the Supreme Court as a concept or the Supreme Court's relationship to the Legislature? Will the Taoiseach say: “I have decided to consult with your party leaders because most of you have been Ministers or worked with Ministers of foreign policy”? How will this consultation fit in with the concept of an accountable foreign policy committee? Of course, it is far less than an accountable foreign policy committee. We must be very clear about this. For the purpose of those who are now still hostile to the idea of a foreign policy committee, those who are recent converts and those like myself who might be regarded as fundamentalists on the idea. I want to place it on the record that the whole nature of foreign policy committees where they exist is to turn unaccountable diplomacy [2360] into accountable foreign policy. We are unique in European in not having a foreign policy committee. We are the only country of all those listed who have no foreign policy committee. It is true that the Joint Committee on Secondary Legislation of the European Communities look after foreign policy but the terms of reference of this committee put very strict limits on the matters which they can discuss.

The confusion which prevails at present, and which will prevail to some extent at the time of the referendum, has been contributed to, to a great degree, by the closed process of European political co-operation. I challenge Members of this House to say who has debated in broad terms the options which were put forward in European Political Co-operation over a number of years. I was interested in this process as it unfolded. It is described in the language coming from the European information office as a semi-evolving informal process. It is now suggested that this informal process must move into a formal structure if we are to achieve what are regarded as desirable objectives in a foreign policy sense by the European Community.

This is the problem about it. I make this point because many Members who have spoken before me have put themselves into a tizzy about the Supreme Court, saying that they are interfering with our mobility. I share their concern but I have been concerned at the exclusion of parliamentarians and the public from debate on and understanding of what foreign policy is. Indeed, the opponents of neutrality and those who regard it as some kind of albatross hanging around our necks have thrived in these conditions. I take the point made by the previous speaker that if you say you are neutral, for example, it must be an informing principle of diplomacy as a practice and an informing principle of a moral kind in foreign policy and, internally, it carries the obligation of teaching your citizens the values of peace, co-operation, international development of building peace, and so forth.

It has no meaning to speak about it as a piece of rhetoric. I am also opposed, [2361] incidentally, to the limitation of neutrality as a concept to military neutrality. In that there is a great trap. All the retired generals, colonels and airforce people will rush to the newspapers to say that if you say you are militarily neutral you must be able to enforce it with some kind of military strength. They will say that if you are not able to do that your military neutrality means nothing. Those of us who have used the term consistently have always used it in the sense of being positive neutrality by which we mean that it is positive in the sense of being an informing principle in foreign policy, that it generates a set of practices of a diplomatic kind and, internally, it will enable our people to evolve a moral sense so that we are a people who value peace rather than war.

I do not want to stray from the topic but I also think there are initiatives we could have taken which would have won us international respect. We could have offered, as a contribution to peace and to a genuine independent position for the Soviet Bloc and the United States, to provide information on the movement of nuclear submarines carrying missiles in the Irish Sea and so forth. There are dozens of opportunities and initiatives we could avail of if we were committed to such a policy. The fact is that in our use of the word “neutrality” it has always been used conditionally. Would we be neutral if Ireland could be united? That question has been repeated again and again. The unification of the country is conditional on what has been called our traditional neutrality. I do not use the term our “traditional neutrality”. It is about as useful as talking about traditional corned beef and cabbage. The equally bogus dimension fits into it to some extent, but it is true that some version of neutrality has been thrown around. I am not in favour of that. I am in favour of the specific concept that positive neutrality can be an informing principle in foreign policy.

There are very few opportunities to debate issues such as this in this House or in the other House because of our [2362] hostility — not our inability — to establishing a foreign affairs committee. Those who wish to discover this can read about it in the Seanad Official Report, Volume 115, of 10 December 1986. I respect the former Minister and Senator, Professor Dooge, as a very thoughtful contributor on foreign policy. On that occasion he spoke of the Danish example. He quoted from a report made by Dr. Steerkamp to a conference of European speakers held in Copenhagen in 1984. On that occasion he referred to Denmark where there is a committee at the extreme end of the spectrum. Danish diplomats and foreign policy had to be referred back to the Danish Parliament and, in particular, to its foreign affairs committee. It was felt that this was an obstacle to discussions and procedures. At the other end of the spectrum is the United Kingdom Foreign Affairs Committee. Someone dismissed this committee as not working very well since it had only discussed the position of Canada. By demolishing both ends of the spectrum we decided we did not need a committee here.

In fairness to Professor Dooge, he said the committee I suggested which was an investigate one — it would have the right to call individuals, summon documents, hear experts and discuss foreign policy — had the charter of an investigative decision. He noted at the time what he called my less than full 100 per cent enthusiastic support for the Government of the day. He said that my committee was structured more on the principle of organised distrust rather than delegated responsibility. I am not happy with the delegated responsibility of foreign policy. I repeat that I am completely unhappy at the manner in which it is assumed that we give Ministers, who in turn govern Departments, the right to conduct foreign policy and to take decisions and so forth without an appropriate accountable mechanism to Parliament. I cannot see how the people who are worried about the Supreme Court and who are in a state of huff about the judges who have decided can, in fact, hold their position of righteousness while [2363] at the same time not addressing this question of exclusion.

I want to conclude this section of my remarks by saying that that, of course, has an historical origin. The Danish Parliament and committee system are within a Scandinavian model of a Parliament working within the Community. We are on a down the road kind of version of the Westminister model. Westminister has brought a committee into existence but we have been so busy at our secrecy in diplomacy and in protecting that secrecy that we do not want to make it transparent. When I was a Member of this House in 1981 and 1982 it arose on hundreds of occasions. People used to ask me why did we vote in a particular way at the United Nations. It would take me weeks to find out. I was ruled out of order in this House for asking questions about why we had voted in particular ways, who had attended conferences in our name, what position did they take, did they issue a paper and what principles did it enunciate. I was told that was a matter for the Minister for Foreign Affairs. There was no accounting to an elected Member of this House, not to speak of our citizens.

In this House there is another hinted arrogance which I find interesting, that is, there is an assumption that the referendum will be carried. Let us suppose it is not carried. I presume that if you go to the people and ask them to mark their ballot paper either yes or no, you are under a commitment to count the no votes as well as the yes votes. I know enough about politics to know that you can predict the results of some elections and other less perfectly.

Let us take the hypothesis that the referendum is not carried, and I presume this wording will not be the one which will go before the people. Immediately you have to deal with the reality of Article 3 and the case for and against. I have no doubt a strong case will be made by different Members of the House against renegotiation. Yet this did not surface to any great degree in the Taoiseach's speech or in that of the Minister for Labour, Deputy Ahern, which dealt with social and regional policy in the [2364] Community. I cannot find in the Taoiseach's speech any real consideration of the case for and against renegotiation. It said that it is not practicable, or something like that. That is what a parent might say to a child, a person who is too tired to give any other answer. That parent would say something to the effect, “I just do not want to do it; I cannot do it”. We deserve more than that. What is the case against renegotiation? Let us hear that case from the Government in reply to Second Stage.

When the Referendum takes place I have no doubt that the elements that will inform us will be three in character. There will be the legalistically oriented argument — I support the people who argue for this — as to the threat posed to the existing treaties that have been signed by Ireland and under which it is presumed we have a moral commitment. I find it extraordinary that that point which was well covered by Deputy Spring yesterday will be omitted in the amendment. The second issue that will become a matter of concern will be that of neutrality. On that issue there is no point in heaping abuse on those who are worried about our neutral state. There is no point in impugning the integrity of those who are presumed to be suggesting that there is some conspiracy to sell out on our neutrality. What is needed is a debate that will flesh out what is meant by neutrality. Many of us are more than anxious for such a debate. In another Assembly I mentioned that Dr. Kissinger found it easier to be invited to some of the scholarly assemblies that discussed these issues than I or people like me did but that does not matter.

Let us all approach a debate on neutrality in a spirit of generosity to try to see what the concepts mean and how they might be made viable. I have a feeling that if we had had amendments from the Taoiseach to deal with the position of other treaties and the question of neutrality it would have been better. I would like to see a commitment by him in his reply to this debate to establish the committee a number of Members are seeking to give us an opportunity to have this openness, this transparency. I urge the [2365] Taoiseach to tell his Minister for Foreign Affairs to ignore those who are obstructing this process and who have done so under several regimes. That was done so very deliberately on the basis that there is some type of special status to diplomatic activity. As one said to me in the course of a conversation, “we are the professionals; you just make up the mad ideas”.

My view is that we are elected by the people and we are here to establish foreign policy. Diplomacy is the most respected, old and complicated art of honouring and advancing those principles that have been made accountable. We are in this trouble because of the closet approach to European Political Co-operation. If we had an open process about European Political Co-operation we would not have run up against the debate we had at the end of 1986 and have the Minister of the day making certain statements, although I know he meant well. The report of the Oireachtas Joint Committee appeared 13 days before that debate commenced and, obviously, people had stayed up nights informing themselves of the details in that report.

The third issue which will form part of the public debate will be that of employment. In the course of the last debate in both Houses the case was made by some speakers that the implications of a single market by the early 1990s had not been teased out sufficiently. In the course of the report, which was signed by the present Minister for Justice. Deputy Collins, on 13 December 1986, the joint committee more or less threw in the towel on the question of the employment consequences when the internal market is completed. The joint committee stated that the completion of the internal market could have important implications for three aspects of Irish economic development, investment, employment and market diversification. The committee went on to quote a document issued by the Irish Council of the European Movement which suggests that there would be more investment, greater access to a larger market and that employment [2366] would automatically result. The committee moved on to quote Jacques Delors as saying that adding one percentage point to the Community growth rate could reduce unemployment by between 30 per cent and 40 per cent over the next five years. However, sources were not given for those figures; they are pure speculation but, in fairness to the members of the joint committee, they concluded that there was insufficient time to discuss the employment implications. That report made the case for a White Paper in that it acknowledged explicitly that there had been an insufficient debate on the completion of the internal market and the employment consequences of Ireland. That report was supposed to be the source document for the debate on the employment consequences.

We should be told if there are adequate provisions in Central Bank legislation of member states to counter people who may group finance to buy chains of hotels here leaving the top financial side of the services in the tourist industry outside the country and the low grade services in that industry within the State. Such questions should have been dealt with in a White Paper on the employment implications of the Single European Act.

There is no doubt that we will have people writing in about the moral implications of us joining Europe. It is possible to construct a personal sense of morality, that it is possible to be responsible in one's inter-personal relations without the hedges of constitutional prohibitions and without the large black walls of moral dictates of an absolutist or fundamentalist kind. There is no doubt that many people will be opposing our acceptance of the Single European Act because they believe that we will then be overwhelmed by some wave of moral degeneration. Our total attitude towards unemployment, the economy and the business of putting fiscal realities as imperatives that have been made clean-like and to which human aspirations and life must be adjusted, is profoundly immoral. I do not share that attitude.

Some people seem to suggest that people who are against the Single European [2367] Act are head-bangers, a phrase used by some people in the media. I am not one of them although I leave the judgment of my relative sanity, lucidity or whatever to others. I am not one of the moralising advance party and I do not have any great wish to sit down with those people. In fact, it has always astonished me how the version of those moralists, their authoritarianism and their commitment to “must” in the national experience is never regarded as a great albatross around our neck by those who find that their ability to fly is limited by our conception of neutrality. That dangerous narrowness is far more deadly to the political system as a sickness than people who go on believing that we can be neutral. All of this is inevitably for another day.

Turning to the amendments that should be made, there are a number of options and responses which we have to bear in mind. I do not make the suggestions in the sense of being some kind of morally fearful person, or in the sense of being narrow or of being an isolationist, but I believe that many of the people who participate in a closet process of EPC are not genuine internationalists. They are people who are participants in a bloc.

I recall when Altiero Spinelli visited this House. I met him and he said: “You must take part in the recharging of Europe, its re-emergence and re-invigoration and if those who are socialists and social democrats do not participate in this process you will leave it to the fascists.” That was the word he used. He knew what it meant as he had been jailed by the fascists. He was saying, because he is an idealist, let us push the community onto a new dimension.

I would be willing to suspend much of my criticism in favour of such an idealistic vision but I would have to see not only amendments to the Bill but a series of institutional mechanisms within the House of Parliament which would enable us to debate foreign policy. I do not see foreign policy as working out how to protect us. We are not neutral virgins of [2368] some kind. We are talking about neutrality being used in forming philosophy. There are people who do not believe that. They use phrases like “of course we are not ideologically neutral.” Deputy McDowell asked if any of us could say we were neutral in relation to our traditional Western democracy. With respect to him, there is nothing necessarily Western about democracy. There are concepts of democracy which precede Western industrial capitalism. There are concepts of democracy which exist in wider cultures. There are forms of democracy yet to be forged between different people. There is sleight of hand being carried on at times in that people are talking about the market on the one hand and Western values on the other.

Many of the countries we work with in the EC are involved in arms production and arms procurement. They are involved in relationships with undeveloped countries which are scarcely moral. Can we say how they should evolve? The concept of this evolution baffles me. The idea is that they should be free to evolve through the WEU and the Atlantic Alliance but we will not evolve in that direction. However, we are both going to evolve together at the same time. I do not understand it. Is our influence in Europe so great that when France is giving assistance to Morocco to conduct a war, or when it is involved in negotiating a fishing treaty in which Spain is involved and which involves territories which do not belong to Morocco, the Irish Minister arrives and says. “This is colonialism. Stop.”? If we have very little influence then of course they do not listen to us in matters like that. The question might be asked: when do they listen to us? People might say: “Let us not have a foreign policy at all.”

Now we are back to the argument: “Is it not dreadful that the Supreme Court have put obstacles in the way of the Government of the day conducting foreign policy?” If I was involved in such conversation I would say: “What foreign policy are you talking about?” The only way we will know what foreign policy we are talking about is to discuss it here [2369] and when the arrogant, anti-democratic tendency in diplomacy in Ireland is ended then we will decide what influence we have in the UN, in negotiating bilateral discussions and within the Community. If we have no influence of a significant kind with our EC partners in areas of foreign policy, should we not seek to put in protections for ourselves? One of these should be to have the right to practise our foreign policy separate from the WEU and the Atlantic Alliance.

We need protections to separate us from the process of industrial and technological research which has an arms implication. We need to separate ourselves in relation to arms procurement. There was a scurrilous cut in the budget of £1 million for overseas development aid. We took off exactly what the people gave during the Geldof operation. If we want an independent aid strategy I can speak with experience of the limitations the Community put on their aid and what we put on ours. They are not always in harmony.

I am interested to hear why renegotiation was ruled out and why certain amendments were rejected in favour of the one we have now. The wording offered to us is that the State may ratify the Single European Act signed on behalf of the member states of the Communities in Luxembourg on the 17 February 1986 and in The Hague on 28 February 1986. The statements made by Fianna Fáil and their criticisms of the Single European Act when they were in Opposition were colourful. In fairness people have a right to change their mind and that is good, but at the same time it is very hard to take this form of amendment. Many people have criticised it for these reasons; they have said it does nothing for Europe or for the other agreements, that it does nothing for future agreements and does not put in any specific assurance that would answer public concern at the time of the referendum. Another criticism that might be made of it is that it is placing in the fundamental document that the Constitution is — and a bad fundamental document it is — that [2370] it takes cognisance of a specific Act.

Not only is Title III addressed by this form of words. It relates to the Single European Act in its entirety. It is establishing another principle of some kind of retrospective inclusion into the Constitution of decisions, not only of the Dáil and Seanad, but informal, quasi-formal, and somewhat formal procedures that are justified under the name of European Political Co-operation. It is a sloppy piece of work at the best of times, even in terms of drafting. I cannot understand those who say that you can go to the people and say this. If this appeared on a poster, an ordinary intelligent person, a citizen of our country looking at it would say simply, “they debated it in the Dáil and Seanad and the Supreme Court caught them out and they are now coming back to us to put it right.” That would not be a fair, logical, total and deep analysis of what was taking place, but that is how it appears to the people in the street. If you say from any one of the different positions that you might possibly take, that you want to assure the position of treaties, put in an amendment that does that. If you believe you cannot do it with an amendment — speeches were made when Fianna Fáil were in Opposition which suggested that we should renegotiate Title III. Certain Members were of that opinion. I do not think you can stand up and say, “these are my words, this is what is being presented to the people in the referendum and I am not disposed to change them.” I suppose the next thing we will hear in the media and elsewhere is that this indicates leadership, that you are willing to stick with your two sentences — or is it one sentence — of defective words. It does not indicate anything of the kind.

What is needed is a clear political debate on whether in fact an amendment process is sufficient, secondly, on what amendments should be made, and, thirdly, on what institutional reforms will accompany the referendum debate or follow the results of the referendum. Anything less than that is totally inadequate. For example, to say, “when the referendum is over I will invite the Leaders [2371] of the other parties in Dáil Éireann to discuss the wider implications of the judgment” is offensive. I do not believe in this business of inviting the Leaders of the parties to discuss it. They could do a number of things based on this paragraph. Will they work themselves up into some kind of collective fury and exchange bile about different things?

I respect the Leaders of all the parties. If we need consultation and reform of institutions and procedures this should take place in this Chamber and in the Seanad. The proposals should be about that. That will require the Minister for Foreign Affairs having the courage — his Taoiseach will have to support him — to make Irish foreign policy accountable to this House. There is no point in asking if the Deputy did not read the reports of the European Communities or to say, “what about the report on recent developments in the European Communities?” I read them all. I was a member of the committee for its first four years. It had limited terms of reference and it precluded discussion on the general principles I have mentioned. Equally, the development aid co-operation committee has limited terms of reference and cannot discuss these issues as we found out again and again. What we need is accountability in foreign policy. If we had had that and had this transparency we would have had a very fruitful, educative and thorough debate on where we are all going. But what we have done is taken an Irish peasant version of secret British diplomacy and regarded that as a substitute for Irish foreign policy. We suffer for that. We need to change it and we should use this kind of confusion we are experiencing now as an opportunity for addressing that reality.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  The amendment before us has been necessitated by the decision of the Supreme Court in Mr. Crotty's case, which, as many people on both sides of the House have said, took many people by surprise. The court's decision was a surprising one, an uncomfortable and embarrassing one, nationally because it [2372] has precluded us from doing what we were supposed to do, that is, complete our ratification in conformity with our own constitutional requirements by January or as quickly as possible thereafter because the coming into force of the Single European Act is delayed not just for ourselves but for all the other member states. I do not mean to imply that the court should have done anything but what it thought fit or what it thought right according to the law, merely because of our embarrassment at governmental level. Of course I do not say that; on the contrary, I have to say this much in favour of the court system — although I have a couple of criticisms in a moment — that the occasional uncomfortable embarrassing decision, indeed even the occasional plain wrong decision, is just like the occasional incomprehensibly lenient sentence from a criminal court which gets the headlines for a few days. It is the price we pay for an independent judiciary, for an independent court and for independent judges who have nothing to fear from the Government or the Legislature as long as they try to do their duty.

They are not expected to be geniuses. They are not expected to be angels. They are not expected to be anything except flesh and blood doing a very important task which requires integrity and seriousness, namely, to apply the law to sets of facts which come before them. They are not required to do anything other than that. As long as they do that honestly there can be no complaint about the system.

Having said that, I do not think I need to say that on that standard the Irish courts have been an ornament to this State for the past 65 years. Despite the occasional uncomfortable and plainly wrong decision, the judicial system has been one of the shining ornaments in our constitutional setting. It has much less to apologise for than the institution of Government or Oireachtas.

It is true, and I have said so in print as politely as possible, that particularly in [2373] the past 20 years, the courts in construing the Constitution have shown a minuteness, a fastidiousness, a certain willingness to niggle over parsing and analysis of words, comparison of clauses in disjoined parts of the Constitution which is certainly very far from what was intended in 1937 when the Constitution was debated in this House and enacted by the people.

I am not going to give the House a lecture, I could give many examples, but I will give just one, of what I mean. The function under Article 26 of the Constitution whereby the President, having talked to the Council of State may decide to refer to the Supreme Court a Bill passed by both Houses for a decision on its constitutionality, while it is still at Bill Stage, before he has by his signature turned it into a law was employed on three occasions between 1937 and 1961. A few years after 1961 the Supreme Court held the words “Supreme Court” in the 1937 Constitution referred only to the Supreme Court which was reconstituted by a kind of a chemical, but not by any substantial, change, as a technically new court, by the Courts (Establishment and Constitution) Act of 1961; and that the references in Article 26 to the Supreme Court — in other words the references to the function of deciding on the constitutionality of a mere Bill, were references not to the Supreme Court which existed in 1937, 1938, 1939, 1940 and thereafter, but only to the Supreme Court which came into existence in 1961. That was held solemnly by the court, notwithstanding that three references had taken place during the period 1937-61. Deputy de Valera was Taoiseach while two of these references took place, and was himself the referring President in the case of the third. That is a simple instance. In other words, these three references were all held to have been a mistake; notwithstanding that they were presided over either as Taoiseach or as President by the man who drafted the Constitution and piloted it through this House, showing in the process a far better legal brain than was [2374] displayed by some of the luminaries in my own party on this side of the House.

Let me quote what Deputy de Valera said, in a vein never heard in this House in these days, about the relations between the other arms of the State and the Judiciary. In 1940, very shortly after Mr. Justice Gavan Duffy had struck down Part VI of the original Offences Against the State Act, thus forcing the Government to release from the Curragh or from Arbour Hill four or five dozen people whom they had locked up at the start of the war and, I think, conducting to the subsequent raid on the Magazine Fort in which several of the people thus released were known to have been implicated, the Government were, in the middle of a World War and in the middle of the Christmas holidays, obliged to recall the Dáil on New Year's day and to introduce very rapid and hastily-drafted amending legislation. I can make allowance for the high feeling which the Government must have been experiencing in the middle of a war to find that this, as they thought, absolutely essential weapon of internment had been struck from their hands, as Deputy de Valera said, by a court decision; and they were now trying to mend their hand in the middle of a world war with people in this country who were determined to get us into it on one side or the other. The Taoiseach said in the course of an exchange between himself and Deputy Paddy McGilligan — I quote from the Official Report, column 1353, Volume 78, on 3 January 1940:

I say if the Constitution which was brought in here, which used commonsense language and which had to be submitted to the people for enactment is not to have the meaning which the Legislature and which the people think it has, and if we cannot get some common ground on which there is an understanding of words, then we certainly cannot get on. If the Legislature and the Judiciary are going to be at loggerheads in that way we shall have to change that situation.

That was, I had better not say “sinister”, [2375] but a rather disquieting expression. I make all allowance for the fact that he was the Taoiseach in a Government who were trying to steer a country through a world war, but Deputy de Valera's whole record shows that he would not have stopped short of contriving some sort of constitutional amendment which would have put every judge in the country out of his job or at risk of being out of his job. He would not have stopped short of that, because the entire enactment of the new Constitution was — I had better not say “provoked”— occasioned by Deputy de Valera's inability to stomach what was going on in the courts. The courts took certain views about certain matters — as he put it himself, in his oblique allusive style, about certain matters they expressed certain views. What he really meant was that they did not agree with him about the Treaty. They thought the Treaty was part of the fundamental law of the land not because the British Parliament had said so but because the Dáil had said so, and was beyond the amending power. Deputy de Valera did not think so; and the only way he could get over that difficulty was to scrap the old Constitution, scrap the old system and put every judge's job on the hazard, so to speak; to bring in a new Constitution which ignored the Treaty and required every one of the existing judges to swear allegiance to the new Constitution before he could sit up on the Bench again.

I know what would be said in here if anyone in Fine Gael were to suggest that method of dealing with things these days. He would be called a fascist and I know the quarter from which that allegation would come, but that is the way Deputy de Valera confronted a serious constitutional problem.

I do not want to be misunderstood about this. I am not trying to compare the situation of 1940 with the situation of now; and I am not recommending either the manner or the matter of Deputy de Valera's opinions as expressed at that time. I am merely saying that that passage throws an interesting light on the problems which can arise and the feelings [2376] which can arise when constitutional interpretation by the courts gets too far away from what a Government or Parliament think the Constitution was supposed to mean. The courts have the duty to interpret it. That is certain and nobody disputes it. I have not said, and will not say, one word which in any sense impugns or reflects on the court's decision in this case; but the courts have shown in a whole series of cases since 1965 or thereabouts a certain unreality in their approach to the Constitution's text. They seem willing to read things out of it which undoubtedly were not in the minds of anybody in this House or outside it in 1937. Some of the things they have read out of it by this system of parsing and analysis have been highly beneficial to the public; but the disadvantage has been that an over-minute approach to this or that provision has left us in difficult and illogical, absurd situations, and I gave the example of the Article 26 reference just a moment ago. It needs to be said in here occasionally that that is so, though I say it with absolutely sincere, unfeigned respect to the Judiciary and to all the courts and in particular to the court whose judgment is the reason for our meeting here today.

Looking at the thing without undue parsing or undue rigour, the plain language of Article 29 confers the foreign affairs and foreign policy-making function on the Government, subject, naturally, to the Government's responsibility to the Dáil and dependence on the Dáil; and in some special contexts, in regard to treaties, and international agreements involving a charge on public funds, the Constitution gives a specific role to the Dáil in regard to authorising this or that move; but an ordinary, plain person reading that Article would say that the conduct of foreign policy is entrusted here to the Government. I cannot believe that Deputy de Valera of all people, who placed the Government, and the people's will expressed in the Dáil and, so to speak, crystallised or distilled then into the Government, intended that the Government's powers in regard to foreign policy should be any less than the [2377] powers exercised in foreign policy by the Governments of Holland, Belgium, Denmark, Switzerland, France, Germany or Italy.

This boils down to my saying I think the apprehensions expressed by some Deputies here in regard to the shadow supposedly thrown by the Crotty judgment over all the exercise of foreign policy and foreign treaty operations by Governments here in the past are misplaced. It is well to express these misgivings, but I do not share them, because I cannot believe that the foreign policy power in the Government here is so depleted, so devitalised, so imbecile, so to speak, that it cannot be exercised in the treaty making role unless it be in a form which is subject to scrutiny at every point. The courts themselves have disclaimed such a function. All the courts have said, and of course they are right, is that the Government in the exercise of their foreign policy must, like every other organ of the State including the courts themselves, keep within the four corners which the Constitution has imposed on them.

The courts have not denied, and I have not understood them to deny, and it would be ridiculous of them to deny, that the Government here have the ordinary powers of conducting foreign policy that every other sovereign Government have. All the court has said is that they must do that in such a way that the Constitution itself is not infringed. That seems clear and I would like, in so far as my voice has any weight, to defuse and allay the misgivings about the operativeness or the validity of the Anglo-Irish Agreement or other agreements that we may be a party to. I cannot see that these agreements are at all necessarily called into question by the Crotty judgment. It may be that if you trawl through those agreements — I am not speaking about the Anglo-Irish Agreement in particular — you will find that the Government here, there or somewhere else have stepped on a constitutional toe. It may be so; but if so it is up to the people who think so to challenge them. I have heard Deputy Haughey — and this is the first time I have mentioned [2378] him since he came to office again——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Taoiseach.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  ——I wish him well and success in his tenure. I say that only because I have not mentioned it before. Last year I remember him expressing grave doubts, and he was trying to put a doubt in the minds of other people, about the constitutional validity of the Anglo-Irish Agreement, the constitutional soundness of it. He expressed himself in quite unambiguous language about the vulnerability of the Agreement on grounds somewhat like those on which Mr. Boland had attacked the Sunningdale Agreement in 1973.

You cannot behave like that if you are a responsible political leader. It was open to Deputy Haughey, when leader of the Opposition, to put the matter beyond doubt one way or the other by challenging that Agreement in the courts. Deputy Boland, a man for whom I have great respect — Deputy Lynch described him as a man of rocklike integrity — I accept his integrity and his sincerity in what he did, although I think his influence on Irish affairs has been lamentable in connection with the Sunningdale Agreement. He played his part in dragging down the Sunningdale Agreement; but Mr. Boland was at least fully within his legal rights in challenging that agreement. I do not know whether he had to pay the cost out of his own pocket but I do not wish to raise that point. He availed of his constitutional right to challenge that agreement, claiming that it conflicted with Articles 2 and 3 of the Constitution, and the Supreme Court was able to disagree with him and to dismiss his action. The same possibility was open to Deputy Haughey; he need not necessarily have done it in his own name, I have no doubt there were plenty of footmen in his own party either in the benches opposite or outside the House who would have been willing to appear in the role of plaintiff for him or for his party, if he thought that the Anglo-Irish Agreement of Hillsborough was unconstitutional, but he did not do so. In other words he wanted to [2379] leave the question mark hanging over it. Now it is too late in the day to do anything and it is a serious matter because he has the reins in his hand and I hope he will make a better fist of it this time than he did on the last two or three occasions. He did not challenge it when he could and now he is stuck with it.

If we are going to throw doubt over all past agreements the State will become a laughing stock to its own citizens, not just to the outside world. We have to assume that these agreements are all right; if somebody wishes to challenge them let him do so. I refuse to believe that the Supreme Court would see itself as interpreting the foreign policy power of the Irish Government so narrowly as to throw into doubt and confusion our entire corpus of foreign treaty arrangements made during the last 50 years. I simply do not believe it.

All treaties reduce one's freedom of action. It is true in the abstract that, as Mr. Justice Walsh in his individual judgment said, a sovereign power is the power to say yes or no. That is a very good description of it. All treaties necessarily by their very definition to some extent, for some purpose in some context, in some areas or for some limited time cut down your right. They are an exercise of the treaty-making power binding you to a certain course of action over a certain period regarding some matter. We have signed the convention against air piracy and hijacking. No doubt we have international conventions about shipping and the Universal Postal Union, the Red Cross and a thousand other things. In all these things we have cut down our right to say yes or no. We have voluntarily done so.

The Universal Postal Union is the oldest and best working international treaty in existence. By virtue of that treaty, if a man in Bulgaria puts 35 stotinki — or whatever their unit of currency is — on a letter and drops it in a letter box, when it arrives in Ireland, 1,500 miles away, it will be carried by an Irish postman to the top of Sliabh na mBan without a penny being paid to the Irish [2380] State, on condition that when the man in Sliabh na mBan posts his letter back to Plovdiv the very same will be done for his letter by the Bulgarian postman. This is a system which works perfectly, but of course it cuts down on the powers of the Irish State. We cannot refuse to deliver this letter. We cannot say “we are damned if we are going to send a postman up to the top of Sliabh na mBan with this letter because we are not getting any money for it”. We cannot say that, because in this degree we have abandoned our right to say yes or no. Every treaty carries that with it; and we cannot, for the same reason, refuse to fulfil our obligation under, say, extradition treaties.

It is the same with private contracts. As the Supreme Court have said, I have a natural right to the private ownership of external goods arising from the Constitution or indeed antecedent to it. That includes the right to contract and to do business. If I contract to sublet my house for a year to X that deprives me of the right to sub-let it to Y. I have still got my general right to contract; but as regards the particular exercise of this right in this area, for this length of time, I am not free in that regard any longer once I have put my name to the document.

Let us not be overawed by this language on the part of the Supreme Court. I cannot believe that they intend to be understood in such a way that one might imagine they do not know what a treaty or a contract is. Of course they know what it is. They know that the treaty or contract, national or individual, cuts down the right of the nation or the individual to use or to dispose of whatever the subject-matter is as freely as they might have disposed of it before they had signed the treaty or contract.

If I were talking to a class about this I would draw their attention to this. The only difference between the treaty which the Supreme Court prevented the Government from ratifying, and treaties on something like extradition, genocide, air-hijacking, drug control and so on is this. What we are bargaining about here is not a particular subject matter like drug [2381] control or genocide. We are bargaining about the freedom to bargain.

If I can use a humble analogy from Sliabh na mBan or somewhere near it: suppose I am a farmer and I try out different crops in different years. Suppose one year I do beet and I contract to sell my entire beet crop to the sugar company in Thurles, my freedom about that beet crop is now limited. My general personal right to contract is unimpaired; but I have exercised that right by limiting its exercise in a particular way. It would be no use to the other man if I did not. The following year I may decide to go into dairying — I do not know whether cattle can be grazed on land on which beet has grown the previous year — but let us suppose that is possible. Suppose I make a contract to deliver my entire output of milk to a co-op the same is true, but suppose the day comes when I get together with a number of other farmers and say “from now on, whatever we decide to do with our land, we are going to do in concert. Whether we decide to grow beet on the north and do dairying in the south of the valley we are going to do this in concert, we will consult with each other and we will try to reach agreement about what is the best way to exploit this valley or this mountainside. If I do that I am doing something which is again an exercise of my right to contract, but it is an exercise on a much larger scale. I am not talking about this field, that crop, this year or the other year; I am talking about the right to make all such decisions in the future, which will now be taken in consultation with others.

I can see that that is a difference in kind, and on that basis I can understand the attitude of the Supreme Court majority, although they did not use the kind of language which I am using. On that basis I can see a difference in kind between Part III of the Single European Act on European political co-operation on the one hand and something like an extradition treaty, a genocide treaty or an air piracy treaty on the other. I can see the point which Mr. Justice Walsh was making when he said that, for the future, the State is committing itself not [2382] to exercise foreign policy in areas X, Y, Z, A, B and C without trying to reach a common position in consultation, or by endeavouring this and that, with 11 other States. He might be paraphrased as saying that that is something which goes beyond deciding, in particular context like control of pollution or something like that, on making the joint co-operative arrangement with seven or eight other States. But that difference in kind does not necessarily raise it to a constitutional order. That is, if I may put my feelings in a nutshell, that difference in kind is not enough to take the whole operation outside what Mr. de Valera, the Dáil and the people would have been willing to see conferred on the Government by way of an exercise of foreign policy power in 1937.

I want to try to make another point in regard to the Government's choice of method. I am sorry to differ from what appears to be the view of most of the people on this side of the House in saying that the Government are correct in the circumstances in going for a minimalist amendment. If we lived in an ideal world, if the Irish people were a different kind of people and this a different kind of juncture, and if we had had a longer debate, as Deputy Higgins has said, on foreign policy in the past, and if our minds were clearer, and if many other things were true which are not true, it would be better to go for a much wider amendment. I myself might have wished for an amendment which would commit the State in so many words to a progressive policy of European integration, saving or reserving only such areas of national legislative sovereignty as we thought non-negotiable — the right, for instance to make up our own minds about the kind of moral questions about which people get upset. Naturally anything on the cultural or moral side or impinging on the national ethos are things which nations should be allowed to decide for themselves. Certainly I would not allow others to decide them for me.

I would be in favour of a wide agreement which would commit us in so many words to the process of progressive European [2383] integration which is what the EC originally has been all about but we cannot have that even though it would be ideally the right thing to do. The Government are right to conclude that we cannot have that. It would broaden the issue too much and would produce the real risk of a referendum to enact such an amendment being defeated. That would mean our exit from the Community and our declension to the rank of a lamb in the company of wolves. Some of the wolves would be carrying Tricolours along with their black berets and goggles and sour expressions.

Any sort of broader amendment is going to raise up every old crabadán in the country. There will be people from the top of the country to the bottom giving out about abortion, the decline in moral standards, about neutrality, everything which anyone without enough to keep themselves gainfully occupied gets into a sweat about in this benighted country. The Government are quite right to wish to avoid a confrontation about that. We will not stop people talking about these issues. They will still be going on about abortion and neutrality, neither of which has anything whatever to do with what is at issue here. We will not stop the debate taking place; but at least we will be able to answer objections of that kind. At least we will be able to ask them to show where there is anything in the document about which we are talking which bears on neutrality or on abortion, on moral standards or anything else.

I must admit that if we had a broader amendment it might possibly be carried. I shall tell you the reason for that. The people would be so outraged and offended at the sight of the interests urging them to vote “no” that they would come out in particularly large numbers to vote “yes”. That happened in 1972. We had then every bully in the country advising the people to vote no, apart from the interests to which that type of description could not, of course, apply — the Labour Party. The Labour Party do not want compliments from me and I would not be so condescending as to be authenticating their respectibility. Of course we [2384] had a genuine, democratic and very serious opposition to EC membership and that was fine, but we had a number of bullies and gunmen of every description, every interest that was determined to turn the country into a desert or a jungle, advising the people to vote “no”

That would be the case again if we had a broader amendment, or even in the case of a narrower one, such as this. With a broader amendment we would certainly have every bully, gunman and butcher in the country out advising people to vote “no” and I think I know enough about the Irish people to realise that that would bring some from their sickbeds to vote “yes”. We would have in particular those connoisseurs of constitutional propriety, the IRA, and their touts; we would have Mr. Adams appearing on platforms down here calling on the people to vote “no”. He even got involved in the divorce referendum last year.

Oddly enough, although it would be wiser to stick to the narrower form, a somewhat broader amendment probably would be carried for that reason. But on balance, the Government are right not to risk it. They are right to try to dispose of this matter quickly and get it out of the way with the minimal form of words. I do not like messy or ad hoc amendments to the Constitution, as I have often said before. But faced with the situation with which they are faced, and which is not of the present Government's making — we could have got all this behind us with a little more expedition on our side a year ago — they probably are doing the right thing. I say that without any fanatical enthusiasm for them, needless to say, but I could not oppose the format of what they are at.

I am sorry to see that the Government are proposing to accompany — and that is not a matter for legislation by this House — the ratification of the Single European Act, if the people authorise it, by depositing a statement referring to our “long established policy of neutrality”. This statement will have no special legal force, but I think I am right in saying it will be the first time an Irish Government have specifically gone even so far as to [2385] adopt in that fairly solemn form something described as a “long established policy of neutrality”. My attitude towards neutrality — and I know it is the attitude of several other Deputies in this House and I am disappointed that none of them ever says so — is that it is a comfortable but contemptible sham. It is suitable to the character of sacred leprechauns that the Left and others wish to keep us permanently fixed in in this country.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  That is rubbish.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  I would not have the faintest worry or misgiving of any kind if the Single European Act did in fact impinge on our neutrality. It would not worry me in the least if it committed us to security co-operation, even on a military plane with other European States, but it does not; it is completely outside of its ambit.

Title III actually contains a sub article which says that nothing in this Title shall impede closer co-operation in the field of security between certain of the High Contracting Parties within the framework of the Western European Union or the Atlantic Alliance. That expression was put in with the intention of saving this country from the sinful temptation of taking up arms in defence of our friends. We were not to be exposed to that. We were not going to be thrust from our toadstools; we could perch up on them like the sacred leprechauns we are and lecture the rest of the world but without spending a penny or endangering a brick in defence of the things we say we stand for.

That clause was taken up by the Irish Campaign for Nuclear Disarmament and they purported to quote this clause by saying that the Single European Act states specifically that nothing in it shall inhibit closer co-operation within the framework of the Western European Union or the Atlantic Alliance, but they left out the words “between certain of the High Contracting Parties”. There is honesty for you. There is transparency for you, Deputy Higgins. They leave out those words and they will do their little [2386] bit, modest though it may be, in order to arouse suspicions and in order to make people uneasy.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  But you and I are responsible for the transparency in this House. When you join CND you can reform them, the same as you have reformed people here.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  Is Deputy Higgins a member of CND?

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Will Deputy Higgins allow Deputy Kelly to proceed without interruption, please.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  The words of Mr. Justice Walsh in relation to this clause will be hurled around a good deal during the next month.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I hope he is not being called a sacred leprechaun from the land of leprechauns.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  Mr. Justice Walsh mentioned this clause. He said its terms were somewhat ambiguous and that our adopting it could amount to an undertaking on the part of the State that in the exercise of whatever powers it may have under Title III, it shall do nothing to impede closer security co-operation between the other states. The judge first recited the interpretation which I have just given, which up to now everybody else had taken as being intended, that those members of the Community which were members of WEU or NATO could continue to be so and could intensify their co-operation without interfering with other countries who were not. The judge then went on to say that another possible interpretation was that it would amount to an undertaking on the part of the State that in the exercise of our powers under Title III, it would do nothing to impede closer security co-operation between the other States.

With great respect to a distinguished and rightly admired judge who played an important part in establishing many [2387] important civil liberty positions in this State, I simply cannot see the ambiguity there, nor can I see any ground for the alternative interpretation he was suggesting. What business is it of this State what degree of security co-operation exists between other states? If two other states within the Community or outside of it think it necessary to intensify their security co-operation, what business is it of ours? It would be monstrous, if it were not laughable, for us to presume to impede security co-operation between, for instance, France and Germany. We are barely able to impede the destruction of law and order in some districts of Dublin without that.

The idea is so preposterous that I can scarcely articulate it. The idea that this country would take upon itself to make mischief between two countries who for their own reasons wished to intensify security co-operation, not in a triangular relationship involving us but between each other, is ridiculous. What right would we have to do it? Are we seriously to consider as a plausible interpretation of this clause that it has been written down in order expressly to prohibit us from doing what we have no right to do in the first place? Are we to seriously consider that this phrase was put in there in order to politely tell the Irish State to keep its nose out of the mutual defence commitments of France and Germany? There has to be some limit. Laughter has to start somewhere, except that this thing is far too serious for it. I salute and acknowledge the duty of the judge to explore as fully as he sees fit words in a document placed in front of him but I would put down any suggestions that this phrase, wrenched from the context of Mr. Justice Walsh's judgment should be seen to lend any weight to the idea that this agreement with that clause has anything whatever to do with our neutrality.

One of the things which strikes me about the neutrality freaks is that some of them want to have neutrality anchored in the Constitution. They want it in some permanent form which will resist the very thing the Supreme Court has said had to [2388] be upheld, namely the freedom of the Government to make up their own mind from time to time in relation to the State's foreign policy. I am not saying that the declaration which the Taoiseach proposes to lodge along with the ratification of this thing if the people authorise it, would be unconstitutional, but I am not saying it, only for the reason that a mere declaration is not cognisable in the courts. A mere declaration of that sort is something which the courts will not review, but I am most certainly saying that the spirit of it is unconstitutional. For the State under one Government to commit itself to a policy which purports to pre-empt what a further Government may wish to do, or what even that same Government may wish to do at a later date, is against the spirit of the very principle which the Supreme Court was at such pains to uphold, namely the unfettered right of a Government to decide on foreign policy.

There is scarcely any area of foreign policy which is more important and in which the State needs a more untrammeled discretion than the right to decide whether to be neutral from time to time, but that is not enough for the people over there. They want to strike from the Government's hand the right to decide to take part in some outside conflict. If I was to be led by Deputy Mac Giolla and Deputy Higgins and the rest of them, this State would never be permitted to decide to take part in a conflict which was not taking place within its own boundaries. This is deeply contrary to the spirit of the Constitution about which we are all so concerned. I do not believe that it was in the mind of Mr. De Valera when he was here or in the mind of Mr. William Cosgrave that the State should be permanently neutral.

I hope we will be lucky enough not get involved on conflicts. I have no doubt that the Dutch and the Belgians who are citizens of small states wish that also. I have no doubt that the small European states who pull their weight in western defence are also anxious that war would not overtake them. They love their children, too. They do not want to see their [2389] sons mobilised and marched off to a front. They do not want fall-out on their houses or bombs on their cities any more than we do but they are adults, adult Europeans, not leprechauns and they face up to the responsibility which living in this tough violent world implies and they recognise the duty — the moral duty, I would say to the Conference of Religious Superiors — of standing by one's friends, of defending people who would defend you.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  That is the morality of Mrs. Thatcher.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  I notice that the neutrality publicists——

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  It is an appalling misconstruction.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  I saw one of the neutrality publicists the other day trot out the banner which was flown in front of Liberty Hall before Easter Week, in 1916 and which said: “We fight for neither King nor Kaiser but for Ireland” as being one of the roots of our neutrality policy.

Had I been alive in 1916, an adult, and had had the guts to have joined the Citizen Army, or the Volunteers, I would have been perfectly happy with that banner over my head because, at that juncture, I could have seen absolutely no reason for us to take part in the conflict between King George V and the Kaiser. I still would see no reason for us to have taken part in that struggle between two capitalist expansionist empires. I know it is possible to unearth a similar dictum somewhere of General Richard Mulcahy from the twenties. I think the former Deputy Richie Ryan, who believes in neutrality, produced it here once, a dictum of General Mulcahy to the effect that he thought neutrality was the correct posture for the Irish Free State. General Mulcahy was an adult living through the time of the First World War. Undoubtly he had in mind the kind of conflict on which the dust had only just begun to settle in Europe. When Mr. de Valera, [2390] Mr. Cosgrave and everybody else in this House, with the honourable exception of the late Deputy James Dillon, came to the conclusion in 1939 that the State's interest would be best served by our staying out of the war, they again had in mind unquestionably the very recent events of the First World War. Looking round me in this House, I see only about two Deputies who, had they been at their present age in 1939, would not have been able to remember the First World War extremely well. It probably looked like a replay of the First World War. In hindsight I think we made a mistake — and I think Deputy James Dillon, the only man here then who dissented, was right. With hindsight I say that but of course, de Valera and Cosgrave did not have hindsight in 1939. They had to play it as well as they could in their judgment of the times. I cannot fault them for that.

We now know what went on in Europe in 1939 to 1945. I should like to ask Deputies Mac Giolla, Michael Higgins and every other Deputy or person outside the House who thinks like that whether they really are — I will put it less insultingly — so base. I do not believe they are. I do not believe any Deputy in this House is so base as to wish to have stood aside from a conflict, from the horrors which emerged from the régime in Germany in those years which was radically different from the Kaiser's I cannot believe that a Deputy in this House would be proud to say: “I am not going to lift a finger to put down European fascism or to rescue its unfortunate victims——

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  And we would have fought against it in Spain as well.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  ——and the traditional policy of neutrality that we are so proud of”.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  We will go back to the thirties; it is time we remembered them.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Excuse me for one moment, Deputies Higgins and Mac Giolla, you are neither obliged [2391] nor expected to respond to the invitation put to you by Deputy Kelly——

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I can assure you, Sir, we have been restrained.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  You need not answer any questions put to you. Indeed he should not be directing them to you at all. He should direct all his comments to the Chair, when perhaps we could avoid the interruptions.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  I am only trying to make the point — and I will make it a bit more temperately — that belief in a traditional policy of neutrality logically involves one in applying that belief retrospectively as well as prospectively. It logically involves Deputies in saying that had they been alive in 1939 and 1940, equipped with the hindsight they now have, they would still have been in favour of neutrality. That is shameful.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  If we were alive in 1936 we would not have been shaking holy water over ambulances to fight off fascism like the Deputy's colleagues, a disgraceful reference.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  That is a position so shameful that I do not believe any Deputy in this House would take it up. I do not believe Deputy Mac Giolla or Deputy Higgins would take it up, or anybody else on these benches either. Why then do we prate about it? I do not want to go to war with someone tomorrow; I do not want my sons to do it; I have no enemy in mind. Let me say this — it may cool tempers on the other side — I am most hopeful regarding the developments in the Soviet Union in the past couple of years. I am optimistic about the way things are going to turn out in Eastern Europe. I hope that the confrontation between the Warsaw Pact and NATO will one day be a thing of the past. I am not advocating aggression. I am not advocating rumbling tanks through our streets. I am only saying we should drop this cant about neutrality and be willing [2392]— even if only in the abstract, even without any special format — to contemplate acting as adult people act toward their neighbours, to bear the risks which mutual trust and friendship involve them in and I may add, in the case of this country, the receipt of very substantial benefits. That is the only point on which I wanted to differ from the Government on this. I am afraid I find myself differing from my own side in regard to the technique of the amendment. The Government are right to go for the amendment for which they have opted, but it is wrong, for the reasons I have tried to give, to perpetuate this shaming sham about neutrality. I wish some more Deputies in here, who I know agree with me about this, even if not in perhaps exactly the same words or for exactly the same reasons, would say so, too.

Tomás Mac Giolla: Information on Tomás MacGiolla  Zoom on Tomás MacGiolla  Beidh mé cuíosach gairid. Níl sé i gceist agam labhairt comh fada le Deputy Kelly.

I intend only to deal with a couple of principal points of this Act, to be as relevant as I can on the issue before us and not to wander over the whole of Irish and world history, if I can help it. After the last contribution I am tempted to go further afield to answer the scurrilous attack of Deputy Kelly and his total inability even to understand what neutrality means. It would be well if he would remain for a while to listen to my response to him. For example, his point in regard to what one may or may not do in hindsight is absolutely outrageous, outlandish and meaningless. One must not depend on clairvoyancy or anything of that nature but rather deal in the real world in which we see today how we stand. Deputy Kelly admits, and it is quite true, that the Irish people — even had they had their freedom and their own Government — would not have wanted to participate in the First World War. That was proved by the fact that the Irish Neutrality League was formed in October, 1914, opposing war, and that many of those who participated in the [2393] 1916 Rising took part in that Irish Neutrality League. They opposed conscription, they opposed war outright. It was an ideological position adopted by very many people at that time — certainly by James Connolly — in opposition to the war which took place in Europe. Deputy Kelly admits that he and the vast majority of Irish people at that time would not have wanted to participate in that war, would have wanted us to be neutral in that war. Deputy Kelly then admits that the vast majority of the representatives of the Irish people, except one, decided at the beginning of the Second World War, that they did not want to participate, that they wanted to be neutral. Those were the two world wars in which neutrality was the position of the Irish people from at least 1914 right through.

Deputy Kelly himself is taking the minority position — which has always been a very small minority position — of saying we should participate in war to defend our neighbours. That raises the whole question of who is my neighbour. Are our neighbours, France, Germany, Britain, Belgium, Holland, Spain and so on, or do we look further afield? Are our neighbours in the various States of Africa, or Central or South America, in Nicaragua, El Salvador or any of the new developed States of Africa, Mozambique, or Angola currently suffering such terrible traumas of war, pestilence and famine? These are the neighbours to whom our volunteers in their concern go out. These are the neighbours we are prepared to defend and want to help. These are the people we see in historical terms as our neighbours and not the great powers in Europe who give us the handouts. Deputy Kelly should look at it in world terms rather than in terms of this narrow west European bloc who call themselves Europe. We should look in world terms at our neighbours and not at what we are prepared to do. We should look at what positive neutrality means and at the one area of respect which we have in the world, our role in the United Nations. Our Army are prepared to fight and to die for peace, to wage peace rather than wage war. That gains respect throughout the world.

[2394]Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  NATO states also participate in the Lebanon peace-keeping forces. There are Dutch, French, Italians and Canadians there.

Tomás Mac Giolla: Information on Tomás MacGiolla  Zoom on Tomás MacGiolla  I am not going into the history of the world. I am stating what our position is, why our position is so strong and so well respected and why we are dominant in the peace-keeping forces of the United Nations.

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  They are not——

Tomás Mac Giolla: Information on Tomás MacGiolla  Zoom on Tomás MacGiolla  A Leas-Cheann Comhairle, could I have the protection of the Chair on this occasion from this backwoods Deputy from Fine Gael who is still speaking?

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  He is following the bad example that was set by yourself and Deputy Ó hUiginn. This is the problem we have.

Tomás Mac Giolla: Information on Tomás MacGiolla  Zoom on Tomás MacGiolla  I am not asking the Deputy any questions. I am——

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Indeed not, a Leas-Cheann Comhairle. Very specific references were made to us by Deputy Kelly.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Deputy Ó hUiginn and Deputy Mac Giolla both know that it is not in the interest of good debate to respond to provocative comment.

(Interruptions.)

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Is fearr Bodhaireacht Uí Laoire. Ná leig ort go gcloiseann tú é agus déanadh an Teachta Kelly an rud céanna maidir leis an Teachta Mac Giolla. An Teachta Mac Giolla without interruption.

Tomás Mac Giolla: Information on Tomás MacGiolla  Zoom on Tomás MacGiolla  I accept the point the Leas-Cheann Comhairle makes but it comes down to almost personal abuse and accusations that one agreed with and [2395] almost participated in the fascist attacks in Europe on all the people of Europe. We were termed as the people who are supporting fascism in Europe simply because we are in favour of neutrality. In fact, we are of the tradition which opposed fascism in Europe well before the First World War developed. The people Deputy Kelly represents were the fascists of Europe in Ireland representing fascism in Ireland. They went abroad to support fascism in Spain and elsewhere. Deputy Kelly is turning history on its head in his attempt to attack the people who support neutrality. He is trying to lump together anti-abortionists, all the people who will come out of the woodwork and those who support neutrality as being totally irrelevant to this discussion. He said that neutrality has nothing whatever to do with the issue in hand but he is in a minority of one in maintaining that position.

The history of what is known today as the Single European Act began over a number of years with developments for further economic changes and amendments to the Treaty of Rome. It was an economic treaty dealing with issues such as tax harmonisation, ending unanimity in voting and having the qualified majority position. In developing that, political co-operation was also being developed. Foreign policy, security and defence were being discussed and a body called European Political Co-operation was to be established with its own secretariat and its own staff. The economic treaty and the political co-operation treaty were parallel. It was not until the end of 1985 that some genius thought of amalgamating the two and calling it the Single European Act. As somebody said, it is a double Act which was put together under what is known as the Single European Act presumably the purpose being that the economic amendments would cover up for the dangerous political implications in the European Political Co-operation and that it would be easier to get it across to the peoples of Europe.

The referendum on the wording before us will be a referendum on whether we [2396] want to ratify the Single European Act. I want to make it clear from the outset that there are two distinct elements in the Single European Act. There is the economic area where there are amendments to the Treaty of Rome. In the normal course of events these would be acceptable to the majority, although we objected to them at the time. We still have grave objections to some of the economic areas, the completion of the internal market by 1992, tax harmonisation and so on. We believe there should have been derogations in the economic area, particularly with regard to regional aid.

The second element is the European political union or Title III of the Single European Act. Whatever about the economic areas being a condition for membership of the EC, there is no question that recognition of the EPC, participation in the EPC, or ratification of Title III of the Single European Act have anything whatever to do with membership of the EC. They are not a condition of membership of the EC and in no way would they be regarded as a condition of membership of the EC.

We have opposed the Single European Act for quite a long time. In February 1986, the week before the Single European Act was to be signed, I wrote to the Taoiseach, Deputy FitzGerald, appealing to him to request his Minister for Foreign Affairs not to sign the Act until there had been a proper national debate on the implications of the Act for Ireland. It was our desire that the matter should be debated here before the Minister signed the Act. I was told that the Act would have to be ratified and it would then be debated in Parliament. Nothing happened during the spring of last year.

In August 1986 we produced a booklet on the Single European Act and launched it at a Press conference on 28 August. We endeavoured to stimulate interest in it as there was very little political or media interest in it at the time. At that Press conference and in that booklet we pointed out specific reasons for our objections to the Single European Act. We pointed out that the Act jeopardises Irish [2397] neutrality. It removes the unanimity of voting in certain areas of the Treaty of Rome. This leaves us in a very weak position and unable to defend our special interests where they are affected. It seeks the completion of the internal market by 1992 without any prior negotiations, proposals or derogations in regard to Ireland and we disagreed with that.

Lastly, we pointed out the dangers to Ireland of tax harmonisation and the severe strain this would impose on the Irish public finances which, as everyone knows, are in a dreadful state. I suppose it would be a very good thing if we had public debt harmonisation because it would solve many of our problems, but with our financial problems, tax harmonisation could have very grave implications for us.

In particular after the Supreme Court judgment, the implications of Title III will gain most attention and will be the main subject of debate. I found it amazing that Deputy Kelly could say, and seemed to believe, that this Single European Act and this debate have nothing to do with Irish neutrality. He could believe that because he has a distorted understanding of what neutrality means, and in particular what it means in this new modern world. He was thinking of what it meant in 1914 and 1940. Neutrality means different things in war and in peace; neutrality means different things to the world as it is growing today. If neutrality has any meaning today, it must be a very positive policy of defence from the influences which can be unleashed upon us and the possibility of avoiding the potential of world destruction which has been hanging over us for 40 years. This threat is having a serious effect on our young people, as well as the continuous local wars and the oppression of smaller nations. I believe the 20th century has turned out to be the most brutal in the history of the world. Even if we look at the time of Genghis Khan we will see that the 20th century has been more brutal than any other era.

We see our power and influence as well as our place in the world as being part of a neutral and non-aligned world in the [2398] face of the big powers. We see ourselves in a position to give leadership and to speak in world terms on this subject. We should take our place as free Europeans and not be hidden in a little group behind NATO, and being able to say, but only in private, that we would not agree with, say, the bombing of Libya. We would not be able to make such comments in public because under Title III of the Single European Act there is a very interesting definition of “consensus”. They say each State must refrain from impeding a consensus and the joint action which this might produce.

In other words, we can say no but we cannot impede a consensus. The other 11 members may agree on something because they are all members of NATO, but we are told we cannot say no because we cannot impede a consensus. Title III provides that all member states follow the common EC foreign policy in all international conferences and institutions. Once they have made their decision on a foreign policy line, we would not be able to oppose that. For instance, we would not be able to oppose it in the United Nations. That means we would no longer have an independent foreign policy.

Neutrality is all about having an independent foreign policy and deciding to be neutral, not just when there is a war but as regards making armaments, nuclear warheads, etc., for war. We should be neutral in the build up of these power blocs and we should fight for the people who are swamped by these power blocs. That is what neutrality is all about. That is something people like Deputy Kelly do not seem to understand. They do not realise what Title III is doing. It is hiding us and we will never be heard from again. We may make a squeak but we will have no voice. We are looked on by the other neutral non-aligned nations precisely in the terms Deputy Kelly was talking about. We do not take neutrality seriously. We are simply saying we do not want to be part of a military alliance. Once we say that we think we are neutral. We have no understanding of what neutrality [2399] means, what our function in foreign policy matters is and so on. That is what we want to maintain.

We know we have not been neutral over the years, certainly since World War II, apart from a short period in the fifties. We want to maintain our position so that we will have a stronger and more positive neutral position in the world, and this will be seen in our foreign policy. We want to develop our foreign policy in that way and we believe the Irish people want that too. Our young people are telling us where their interests lie. They are not concerned about Britain, France, Germany and so on. They are concerned about the people who are suffering, who are starving, because of the policies pursued by France, Britain and Germany — storing food and accumulating surpluses which cannot be given in any circumstances to the people who are starving. The common ordinary Irish people do not understand that policy and they do not want to have anything to do with it. I think it was Mr. Jacques Delors who attempted to get the EC involved in military matters in nuclear weapons. He said we should be helping to prevent the removal of United States and Soviet missiles from Europe rather than encouraging it. That is precisely the way we would be acting in NATO. We would be urging the removal of these missiles but other countries would be arguing that we needed them even more. Some countries indeed would even want to produce them and would demand more Sellafields to help them. Under Title III we will be specifically prevented from opposing Sellafield. Section 6 (b) of the Single European Act states:

The High Contracting Parties are determined to maintain the technological and industrial conditions necessary for their security. They shall work to that end both at national level and, where appropriate, within the framework of the competent institutions and bodies.

Of course Sellafield is one of the technological and industrial areas necessary [2400] for their security and we, in signing the Single European Act, are agreeing that the high contracting parties have a right to maintain the technological and industrial conditions which means maintaining Sellafield. By signing and ratifying the Act we are saying that we have no right to oppose Sellafield. We are restricting every single area of our foreign policy right down to our opposition to Sellafield which the Government specifically said they were determined to have shut down. The vast majority of the Irish people, certainly everyone along the eastern seaboard, definitely want to have Sellafield closed because they see it as a daily threat to their lives and are concerned about its effect on the Irish Sea, apart from the danger of any leaks or explosions from the plant.

In my terms of understanding of neutrality, this will destroy it; we will be discussing defence matters with NATO countries and seeking political co-operation in order to have them implemented. We will either say nothing or be opposed to many issues, but we will have to agree to the consensus reached by the other countries and to stand by the common policy decided on by them. We will even have to support this policy at the United Nations.

Mr. Griffin: Information on Brendan Griffin  Zoom on Brendan Griffin  The full implications of the Supreme Court majority decision in respect of the Single European Act are only now dawning on the Members of the House. Most Members, including myself, have been taken completely by surprise at the decisions downstream which have constitutional and political ramifications. If we are to follow the decision through to its logical conclusion, a question mark should be placed over all the treaties, statutes and international agreements entered into on behalf of the people by all Governments since the foundation of the State. Our present and past roles in the United Nations, GATT, our participation as a peace-keeping force in Cyprus, the Lebanon and Africa are all subject to question and to doubt and, therefore, it is essential that in the forthcoming constitutional referendum on 26 [2401] May we end, once and for all, the doubts, uncertainty and ambiguity.

While we may vehemently disagree with the majority decision which places the foreign policy of any Government in jeopardy and removes from the Executive the ultimate role of policy-maker, we must accept the situation and face up to the implications and the problems consequental on it. We must now address ourselves to the problem and extricate ourselves, leaving behind as little constitutional and political debris as possible. The Government have over-reacted to the judgment and have hastily and ill-advisedly cobbled together a Referendum (Amendment) Bill to meet the exigencies of one specific problem. In their haste, they have left all other treaties hanging constitutionally in mid air.

I appreciate that our tardiness in not having ratified the Single European Act by 1 January 1987 has displeased some of our 11 member state colleagues in the EC but neither this nor the previous Government are blameworthy in this regard as the matter was sub judice in the High and Supreme Courts. I recognise that the Government are sincere and anxious to have the matter resolved at the earliest opportunity but a cool, calculated appraisal of the situation was needed, a period of time to reflect on the best course of action to adopt. Above all else, we must ensure that the constitutional referendum closes off, once and for all, the loopholes and doubts about the constitutionality of this Act and all the other agreements already entered into, thereby ensuring that any Irish Government in future can pursue their foreign policy unfettered and untrammelled without glancing over their constitutional shoulder, so to speak, at their every foreign policy decision.

Surely some form of words could be found to have this all-embracing effect? Surely there are enough legal luminaries in the House and at the disposal of the Government to ensure that this newly arisen problem can be resolved once and for all in the forthcoming referendum? Otherwise, I fear we may have a quick [2402] succession of referenda to resolve each new problem as it arises. I appeal to the Taoiseach, as other Members on this side of the House have already done, to broaden the scope of this amendment as it is too narrowly based.

The Taoiseach should take into account the genuine fears and worries of the Members on this side of the House. He would not lose political face as a result, as Members of the Fine Gael Party are as surprised at the latest turn of events as many Members of Fianna Fáil. He would gain in political stature and it would be a magnanimous gesture in return for the goodwill and co-operation already shown by the Fine Gael Party to the many problems facing the Government and the country. Working together, a better, fuller, more rounded form of words could be found to deal effectively and expeditiously with this problem. I confirm that Fine Gael are completely in favour of the ratification of the Single European Act. We will be working tirelessly for a massive, positive “yes” vote in the forthcoming referendum. We are committed Europeans and we will launch a major campaign to keep the electorate as fully informed as possible on the benefits of our continued membership of the EC. We are committed to the concept of the EC on which the Irish electorate gave such an overwhelming vote of acceptance in the referendum in 1972. We are aware also of the many shortcomings of the Common Market and how it has not lived up to the full expectations, hopes and aspirations of the founding fathers. Nevertheless we realise only too well the huge financial benefits to Ireland since we joined. I believe that we are net beneficiaries to the extent of £4,300 million. When we consider the advantages from the Common Agricultural Policy to our farming community, the ESF grants to our young students, the regional policies for the disadvantaged areas, the FEOGA grants and the many other grants given to us, we can appreciate the benefits to Ireland of our membership of the EC. We are committed to Europe and the destinies of Ireland and our 11 member [2403] colleagues in the EC are inextricably linked together.

The Irish electorate want to be part of the European scene and to play a continuing leading role in the further expansion and development of the European concept. For historical reasons, and through no fault of our own, we have been for far too long kept apart from Europe. We have been cut off politically, culturally and economically from the main stream of European though. For centuries we were unwillingly tied to the purse and trading strings of England which is our nearest powerful neighbour. Now at last we can break out of this mould, break the shackles and the manacles, raise our national horizons, look further afield beyond ourselves and play a significant role in the Europe of the future. We have a worthwhile contribution to make in Europe, not as second class citizens, but enjoying full membership and equal status with the other 320 million people of the 12 member Community. We can share our art, our culture, our philosophy and our way of life with them and they in turn can enrich us by their finer characteristics and qualities.

One must readily agree that a dramatic change is needed to shake the EC out of the inertia into which it has sunk. Some impact is needed to revitalise, revamp and recharge the tired batteries of the Common Market. The Single European Act will go some way towards this end. We hope it will give the new cohesion and discipline which are so sadly lacking at present and give back the breath of life to Europe so that it can become what we had hoped it would become — a great buffer state between the united states of Europe and the United States of America and Japan. A change in gear is needed to set it on the road to European union.

The advantages to Ireland are manifestly clear. We cannot remain in the back waters of Europe, a small isolated island on the periphery of the European mainland. We must get involved politically, culturally and economically or else we will always stay in the background and become stagnated and vegetated.

[2404] An internal market of 320 million people, frontier free, by the year 1992 is the aspiration of the Single European Act. This Act serves as a hope and a challenge to the industrialists and young people of Ireland. A market of 320 million people conjures up great possibilities for our young educated workforce. We can aspire to capture some of that market and a share of that great potential. It is there to be worked for; a challenge to the entrepreneurial skills of our industrialists and young people.

We are informed that there are over 850 foreign owned companies in Ireland directly employing 80,000 people and giving employment downstream to a further 80,000 in the services sector. Over 400 of these firms have parent companies located in other Community member states. There is, therefore, considerable scope for attracting new investment in a more economically integrated Europe from within the community as well as from Third World countries. The advantages of establishing closer working relationships and joint ventures with other companies in production, research and marketing activities must be impressed upon Irish manufacturers. We can break away from the strangled grips England had on our trading during the past half century. In 1960, 75 per cent of our exports went to the United Kingdom and only 6 per cent to the Community. By 1973 the United Kingdom accounted for 56 per cent of our exports and the Community 12 per cent. In 1985, 69 per cent of our exports went to the Community of Twelve. It is now very probable that by the end of this decade Irish exports to continental EC countries will be two to three times greater than our exports to the United Kingdom.

Much has been said about the role of our neutrality. I disagree with the views expressed by Deputy John Kelly. People are rightly concerned about and value our neutrality. They do not wish to be aligned to any of the major powers. Many people are scandalised at the vast amounts of money that are spent daily and weekly in nuclear rearmaments throughout the world while at the same [2405] time there is so much suffering and starvation, especially in Third World countries. I value and relish our status of neutrality. It has given a dimension to Irish people, especially those working in the Third World and those giving development aid and foreign assistance to developing countries. If we were aligned to any of the major military groupings we would lose our impact and influence. I am delighted Deputy John Kelly has reiterated, in case we have any doubt about it, that the Single European Act does not in any way infringe our neutrality status. We have been told that the Single European Act contains one article relating to security which has been criticised by some commentators in this country on the grounds that it seriously compromises Ireland's military neutrality. Article 30, paragraph 6 (a) states:

The High Contracting Parties consider that closer co-operation on questions of the European security would contribute in an essential way to the development of a European identity in external policy matters. They are ready to co-ordinate their positions more closely on the political and economic aspects of security.

Article 30, paragraph 6 (c) goes on to clarify the position beyond any shadow of doubt as to our status of neutrality if and when we ratify the Single European Act. It states:

Nothing in this Title shall impede closer co-operation in the field of security between certain of the High Contracting Parties within the framework of the Western European Union or the Atlantic Alliance.

This is definite and positive proof, if it were needed, that our neutrality status will not be infringed and that we will be free to continue as heretofore in our neutral position. The text of Article 30, paragraph 6 (a) specifies that only the political and economic aspects of security are legitimate subjects for co-ordination between the member states. Military aspects of security are, therefore, excluded and discussion of them by [2406] member states cannot take place within the EPC framework. The forum for such discussion remains, as it has always remained, with NATO or the Western European Alliance.

I am pleased that Article 30, paragraph 6 (c), clarifies this position. The drafting of this article and its introduction into the Single European Act shows an understanding of Ireland's neutrality on the part of our EC partners. It does not compromise our neutrality or undermine our rights to maintain and develop a strong and positive independent foreign policy. Therefore, I will be able to inform the electorate that our neutrality is not in question in this instance and they can safely vote for the acceptance and ratification of the Single European Act without putting our neutrality in jeopardy.

I am also informed that we will still be allowed to use the veto or the Luxembourg Agreement arrangement. If we feel an item being discussed is essentially against our interests we can still use the veto. There is a move away from unanimity towards qualified majority voting. The reason for this is that there is a backlog of over 300 measures awaiting decision. Many of these are Commission proposals and have been blocked in the Council of Ministers. This is largely as a result of the cumbersome decision making procedure which resulted in unanimity being insisted upon in cases where the Treaty allowed for qualified majority voting. All of this had to be altered if the 1992 deadline was to be met. Hence, the Act replaces the unanimity requirement by qualified majority voting in an important number of Articles dealing with the completion of the internal market.

The strengthening of the Commission's implementing and managing powers should also introduce more efficiency in this area. Qualified majority voting will be used for decisions designed to bring free movement in goods and services, but unanimity will still be required for legislation concerning the free movement of persons and the harmonisation of indirect taxation. This is a necessary move because the EC had got bogged down as no decisions could be taken while [2407] they were awaiting the unanimity of all member states. This is a move to sharpen up the activities of the EC and to clear the backlog of some 300 measures which are essential to the spirit of the EC.

Having examined the Single European Act I can assure the electorate that their worries about our neutrality, the veto and not having the power to vote no and their queries about the many other aspects are all safeguarded in the Single European Act. We on this side of the House, Fine Gael especially, will be launching a programme shortly to ensure that the electorate are fully informed on the implications and asking them to give a positive yes vote so that we as a nation can play our role, a role which is worthwhile and positive, and that we can make a contribution to the further expansion and development of Europe. We have a rightfull part to play.

Down through the years for historical reasons we were artificially cut off from that participating role in Europe but at long last, now that the fetters and the bonds have been broken, we can play that fulfilling role, a role we did play for many centuries before we were colonised. That role is awaiting us again in the Europe of the future. Therefore, I recommend the acceptance of the Single European Act to the people. I hope the Government will have another look at the wording of their amendment and acquiesce in the wishes of the main Opposition parties to broaden it to include and ensure that all the past treaties, agreements and statutes which have been entered into by successive Irish Governments since the foundation of the State are not left hanging in the air and that there is no doubt about their constitutionality.

A format of wording can be and should be found and I appeal to the Minister for Agriculture and Food, Deputy O'Kennedy, to go back to the Cabinet to ask them to have a rethink and a relook at the wording so that it will receive unanimous support in this House which will ensure that on May 26 when it is put to the people they will come out in force to give [2408] a positive yes to our further contribution to Europe and to our future participatory role in the future formation of policies in the EC.

Minister for Agriculture and Food (Mr. O'Kennedy): Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  If the Government of the day had listened to the comments we made when this Bill was presented to the House in December of last year the necessity to have this debate and the referendum which has to follow would not have arisen. Deputy Birmingham, who was then Minister of State, will recall a debate which he and I had on the issue in the presence of the Minister for Foreign Affairs. He responded to the issues I had invited the Minister to respond to. Deputy Birmingham will recall the burden of the argument I made that day. It gives no one any great pleasure to say, “we were right” and “we told you so”. Obviously, I have to refer to the record to see precisely why we told them so and why we were right and the Government were wrong.

Had they acceded to the requests we made and had any one applied any degree of political or constitutional analysis to the issue we were addressing, this corrective action, if I may call it that, by way of a referendum would not have been necessary, but it is. It is quite appropriate that even this belated correction should be undertaken but it is not appropriate, now that the previous administration have been proved to be wrong and, truthfully, very far wide of the mark both in their presentation and assertions, that many of them should now suggest that the provision we propose to put to the people is not wide enough, that there are other issues which have to be addressed and that it is vitally important that matters be left beyond any doubt.

Having confused the issues in Government they should refrain from confusing the issue in Opposition. I have searched through the records for any position stated by the Progressive Democrats in the course of the debate on that occasion. Their contribution, in fact, was to make no contribution. On that basis they would do well to consider the implications of [2409] what they are saying at this stage. I want to quote what was said by the Minister, in particular, and by those of us who took part in the debate on the last occasion to point out how the Government ignored blandly and consistently the facts presented to them and all the evidence which was there and which poses problems for us now in view of that attitude.

I quote from the introductory speech of the Minister for Foreign Affairs made from a prepared and supplied script, as reported in the Official Report, column 1902, 9 December 1986:

The only innovation in all of this is the establishment in Brussels of a light and compact Secretariat for the process, clearly under the authority of the Presidency, to which it will be an administrative adjunct. The Presidency remains responsible for managing EPC business including the drawing up of working papers and for representing agreed positions of the Twelve.

One can see from that that it was the clear intention of the Minister for Foreign Affairs to convey that the only innovation involved in this was, as he called it, a light and compact secretariat, purely an administrative innovation. For that reason he gave the impression that it did not require a referendum to see whether the people would endorse what was not provided for in the original Treaty of Accession of 1972.

That position was reiterated by the former Taoiseach in his contribution on 10 December. One has to admit that there was consistency on the part of the Taoiseach and his Minister for Foreign Affairs but they insisted that the issues we were addressing in the House at that time were matters purely of an administrative nature, doing no more and no less than giving administrative form to what was already a practice. The former Taoiseach, as reported at column 2248 of the Official Report of 10 December, 1986, said:

The Single European Act changes in [2410] no way the practice of political co-operation as undertaken since the time we joined the Community and, accordingly, has no implications for neutrality——

I do not think that last point is of great consequence but the Taoiseach of the day told us that the Single European Act in no way changed the practice of political co-operation. That clearly flies in the face of reality and of the provisions in the Act. Immediately after that statement by the former Taoiseach I am quoted, by way of an interruption which seemed to have annoyed the Taoiseach greatly, as saying that the Taoiseach should read the Act in relation to the Commission's role and otherwise. The former Taoiseach rounded on me on a personal basis for reminding him of the terms of the Act, an Act which was ignored by him and his Minister for Foreign Affairs.

Very embarrassing mistakes have been made and they pose problems but at least at this point we can begin to rectify them. I spent the last few weeks travelling around the capitals of Europe having discussions with colleagues and I assured them that there was at least political consensus now. I must say that I found it very difficult to explain to them how something that appeared so clear could have been ignored so stubbornly by the previous Government. They, like me, could not understand why, when there was a clear risk of an outcome like that in the Crotty case, the Government chose to insist on going ahead ignoring the constitutional risks that were clearly there. For that reason I welcome the belated consensus that has emerged but I must suggest to the Opposition parties that they should carefully refrain from raising some other issues on which they are, truthfully, equally ill-informed.

To compare this, for instance, to our commitment to the Charter of the United Nations shows an abysmal ignorance of the differences between the institutional obligations here and those of the United Nations which are not subject to a binding decision. In fact, people have always suggested that a weakness of the UN is that [2411] it cannot compel members to take action; it can only advise, recommend or persuade and, hopefully, enjoin in one way or another. The UN has persuasive powers and it has powers in regard to agreements. Those who reach agreements are expected to adhere to the instruments ratified by the UN but that body does not have the institutional or secretarial obligations that are enshrined in Title III of the Single European Act.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  It most certainly does.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  If the Deputy reads the Charter he will find that it does not. The Deputy, who was not here for the last debate, would do well to compare the principles enshrined in the Charter of the UN—

Mr. Birmingham: Information on George. M. Birmingham  Zoom on George. M. Birmingham  The obligations are far more rigid.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  They may be wider in their implications but they are not of the same binding nature and Deputy Birmingham knows that.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  They are binding obligations in the Charter.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  They are not.

Mr. Birmingham: Information on George. M. Birmingham  Zoom on George. M. Birmingham  They most certainly are. I suggest that the Minister should read Article 2, for example.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  If the Government, previous administrations and all the international organisations were able to live under our membership of the UN over the last number of years it seems strange that this red herring is being raised at this point.

I should like to refer to some of the points we addressed to the Minister in December last. Deputy Barry, then Minister for Foreign Affairs, said in December that my contribution was a most extraordinary contribution to a European debate and went on to say that this is a small and insignificant step. He was [2412] referring to the step taken in Title III. I invited the Minister then to consider all the implications of Title III but the Minister of State, Deputy Birmingham, was sent in to deal with issues that should have been dealt with by the Minister for Foreign Affairs who had chosen not to deal with them. The Minister, as reported at column 2565, of the Official Report of 11 December 1986 said:

Deputy O'Kennedy used a spurious argument to heighten fears. He knows we are merely formalising what has been the practice for the last ten or 12 years.

What did I say that was supposed to be spurious? I described Title III as a major change after the then Minister for Foreign Affairs indicated that there was no need to incorporate the terms of Title III in the legislation on the basis that it was not in any way associated with the original Treaty of Accession. I pointed out to the Minister that that was the reason this was outside the scope of the Treaty of Accession and that that acknowledgment by him underlined the fact that it was not envisaged in the original Treaty of Accession. For that reason I suggested that the matter be referred to the people for their determination. I said, as reported at column 2568 of the Official Report of 11 December:

These are not just minor changes in the Treaty, they are major developments. If the Government were to come in here and admit they were major developments and that they wanted to argue the rights and wrongs of them, at least we could have an honest open argument but when I am told...by the Minister and his Minister of State that these are only minor adjustments, that is an offence to the House.

I have no doubt that Deputy Collins, Deputy Treacy and other Deputies will probably want better guarantees.... People will look back on this Dáil in a number of years time and they will say, [2413] they were a petty, puny lot because they spent four or five hours debating something so fundamental that they did not seem to be aware of their own sovereign rights and obligations. In order that that does not happen we should do something about it now.

On each occasion, when I pointed out that the practice of political co-operation meant a lot more than mere administrative change, the reaction from the Government at the time was that I was trying to heighten fears.

At column 2600, I said:

Clearly, there is one major omission and there are many others. The one major omission from what is being incorporated into the European Communities Act of 1972 is Title III, which deals almost exclusively with political co-operation. Perhaps the Minister could indicate at this point why that is not being referred to in the amendment.

What did the Minister of the day say? He said:

Because it is not going into any of the Treaties of Rome or into domestic legislation. It is standing separate.

I asked: Why was that the case, and he said:

Because it deals with political co-operation. This Bill deals with an amendment to our legislation to amend the Treaties of Rome.

Not surprisingly I said:

The Minister has answered my question and I think has exposed the anxiety we have. The original Treaty of Rome, the original Treaty of Accession, has no reference to political co-operation. It is not part of the legal international obligations we have, not part of what we adhered to, or what the Irish people ratified by referendum. Because it is not in the original Treaty of Accession, the occasion to add to the Treaty of Accession does not arise. It is not part of the competence of the original [2414] Treaty, as the Minister has acknowledged now.

I went on at great length to point out that because it was not part of the competence of the original Treaty, we were obliged to seek authority for extending the scope of the Treaty from the people. It is stated in columns 2600, 2601, 2602 — I will not quote them because I do not want to be accused of quoting myself——

Mr. Birmingham: Information on George. M. Birmingham  Zoom on George. M. Birmingham  At one stage, the Minister was quoting himself quoting himself.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  That may be and the Deputy could do with listening to some of it at some point. I said at column 2602: “He does not have the right to do this; indeed no Minister has such a right.” That was and still remains the position. I regret that the Government of the day and the other parties so blandly ignored reality. When it was pointed out to them they chose to respond only by argument and hurling personal abuse which I do not want to go into at this point as it does not do any good to the issue or to the Government of the day.

Mr. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Why is the Minister making the same mistake now?

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  As regards political co-operation, I agree with the Taoiseach when he said that nothing that has been done under political co-operation in our experience since accession should give rise to any apprehensions in terms of our membership of the EC. We should remind the people of some major achievements as a result of political co-operation. During my period as Minister for Foreign Affairs, and during our Presidency in 1979, some major developments, which will stand to the credit of our Presidency, were brought about which contributed towards an easing of tensions in international affairs.

The Lomé Convention is a creature of political co-operation which is not covered in the Treaties of Accession. It was no accident that it was under three successive Irish Presidencies — the [2415] former Taoiseach, my own period as President and the previous Minister for Foreign Affairs, — that the Lomé Convention was negotiated and re-negotiated. This could not have arisen but for the process of political co-operation and consultation formalised in the Lomé Convention which is an international agreement between the EC and APC countries. Whether it is an adequate instrument of co-operation, it is one of the most successful measures of co-operation between developing countries and the EC. It is one of the proudest achievements of the community which we are sometimes less than satisfied with as committed members.

As regards the Middle East, we played a major part in bringing about the basis of a resolution of what is a constant problem for the people in the area and a threat to world peace. During our Presidency in 1979 we managed to get agreement to mention the PLO in the United Nations for the first time as a party to the conflict. The fact that such a small country was able to achieve that without any major limitations because of our historical colonial involvement was recognised then, and still is, as one of the major contributions to the lessening of tensions between the EC and the Middle East. It also contributed to the beginning of a better understanding between the parties in the conflict though not to a resolution of the problem. Much that has been achieved between the PLO and Yassar Arafat is as a consequence of that development in September 1979 under our Presidency.

We all remember the awful scandal and tragedy of the boat people in 1979. This shocked the world. It may have faded from our memory but it was one of the most horrific human tragedies since the last World War and the tragedy of the Jews. Our Presidency, and more particularly the informal meeting we presided over in Ashford Castle, brought about a conclusion which enabled the Nine to take a common position at a specially convened meeting in Geneva later that year which resulted in common [2416] action with the US, Canada and Australia — I remember attending a meeting in Indonesia to promote this on behalf of the Nine — which brought about an end to that tragedy.

That is another example of a positive consequence of political co-operation where we played a central role during our Presidency. I am just picking extracts from where I was directly involved, for example, in the actual resolution of the Rhodesian conflict. I think the British Foreign Secretary at the time would acknowledge that he was helped greatly by the fact that the Nine member states agreed in Ashford Castle to the outlines of the ultimate resolution for the solution of what was then the Rhodesian conflict. These are some examples of very positive political co-operation. I do not want anybody to think that when I comment on the political co-operation which is being proposed as being necessary under the Single European Act, I am being critical of the whole process of political co-operation. My experience has been that it has made a major contribution.

I would like to say also that we have been able to play a very major role in that process, perhaps because people are not so sensitive to the role of a small country compared with the sensitivities they might have regarding the role of former colonial powers. We will continue to play such a role for as long as the process of political co-operation exists. Having said all of that, it has to be stated that what, during all of that period I have been decribing, was an informal arrangement is now being formalised in a very formal manner of Treaty obligation. On the last occasion in this House I did not say that I opposed that, nor do I say it now. What I did say was that because it was entering into a new institutional format it was different from anything we were bound by originally in the treaties and that because of that it should require an amendment to the Treaty of Accession and accordingly a referendum. The Government refused to respond to that reasonable argument. I do not want to embarrass the former Minister but I did [2417] ask more than once during the course of the discussion on Committee Stage that he might give me some legal or constitutional justification for the position he was stating so blandly and stubbornly, instead of inviting in the former Minister of State to make comments, perhaps to throw his legal opinion into the issue, but I think to distract those of us who were confining our arguments at that time to the legal and constitutional issues. The Minister refused to reply to any of those arguments. I hope we can get over that stage and recover from our embarrassment in Europe. It is a measure of the goodwill of our partners in Europe that they are not showing any impatience with Ireland. I have been around to six capitals recently and I know that our partners in Europe are not showing a measure of impatience with the Irish people, nor with the Irish Government nor indeed with the Irish Parliament. But they are perplexed that the former administration could ignore so much of what seems so obvious now to everybody and what was obvious to us at that point also.

There are three organs of Government — the Executive, the legislative and the judicial as set out in the Constitution. I think it undermines the Executive and the legislative organs of Government when they have to be reminded of their obligations by the judicial organ of Government. It would be very much more in our interest were we to act on our own responsibilities and were able to demonstrate that we did not have to be subjected to judicial scrutiny, much less the judicial sanction. Therefore, from now on, I hope that before we make general statements which are not based on reality or Treaty obligation, we fully examine our particular function here either as Executive or Legislature and ensure that our authority is not being undermined by the sanction of the third arm of the Constitution, namely, the judicial arm. It would have been well if in the course of all of last year the executive functions of the Constitution were properly discharged by the then Government. We had adequate time to debate [2418] and analyse and in discharging our constitutional obligations as Members of Parliament we should have examined all these matters in details. We were pressured literally both by time and, to a certain extent, intimidation in that we were being accused of raising specious and spurious arguments. We should have been allowed to look at this as both our constitutional right and obligation requires us to do.

I wish to comment finally on the interplay between the Judiciary, the Executive and the Legislature. Because we are all inter-dependent as arms of the Constitution, it would be better that we did our job. Equally, it is important that the judicial organ of Government should always bear in mind that in exercising their judicial constitutional function they do not make it extremely difficult, or well nigh impossible for the other organs of Government to exercise their functions. Decisions that are made in the exercise of the Judiciary's totally independent discretion which can have, for instance, major financial consequences for the Executive organ of the Constitution should be very seriously weighted by the Judiciary before coming to a conclusion. There has been a whole range of cases in recent times where the Judiciary have made decisions affecting the finances of the State thereby demonstrating that they exercise their power independently. I hope they will always exercise their power on the basis that the Judiciary which is established under the Constitution as the organ of Government which protects and interprets the law and the Constitution should ensure also that its relationship with the other organs of the Constitution should be such as to enable the Government or Parliament to fulfil their responsibilities. I do not quote the Crotty case as a case in point but I suggest that the degree of apprehension raised suggests that one would never know what the Judiciary is going to do next. I do not share that view but one should always be guided by the principle that the first presumption is that the law is being properly adhered to, that the Constitution is being upheld and that only [2419] where clearly and obviously it is being ignored should the Executive function be struck down by judicial determination.

I will deal now with the area that directly impinge on my responsibilities as Minister for Agriculture and Food. Our proposal to the House and to the people is not only what is required but is what our partners would want from us, that and no more. Our partners have never suggested that we would be bound by military association or bound to limit our neutrality. However, they want a clear indication that we are able to play our part consistently without any limitation or qualification as members of the European Communities. That does not suggest that we suspend the right to be critical. It means that as full and active members of the Community, in which we have played a very positive role, we have an obligation to be critical where the direction of the Community is not quite in line with the direction established by the Treaty of Rome initially and the Treaties of Accession that we signed some 15 years ago.

It is very much in our interests that the Community should become more effective and more coherent both internally and as a trading power in the world. The Single European Act is a modest step in that direction.

It is important that we weigh up the arguments as to our advantages and disadvantages. In my own area, agriculture and food, it is clear that we have derived very sizeable benefits from Community membership and that opportunities inconceivable before accession have been made available for us since accession. In direct financial terms Community support for the Irish agriculture and food sector has totalled about £5.6 billion since 1973, £5.1 billion for market operations and almost £500 million for structural improvements.

I want to draw attention in particular to the fact that in 1986 alone the total transfer under those headings reached a record level of £930 million and the indications are that the transfers this year will even exceed that figure. You can see [2420] that the pace of transfers — for reasons which I do not wish to go into at this point because it would not be appropriate that I should in advance of discussions and arguments at the Council of Ministers — has accelerated to the point that last year they represented almost one fifth of the total transfers in the years since we joined the Community and the extent of the transfers on FEOGA this year on the current estimates will be at least the same amount. That is a measure of the importance for us of membership of the Community and of the volume of resources involved.

The commercial opportunities have been almost equally important in the past and will be even more important than the financial transfers in the future if we can develop our policies to maximise the added values in a whole range of products. That is now a priority for the Government. Access to some of the biggest and most promising markets in the world, now a common market of some 320 million people, is an advantage of importance that cannot be calculated to a small country providing far more food than it can consume at home. To an increasing extent this opportunity has been availed of by our processors and exporters but I want to see a much more rapid development in that direction and I will encourage it in every way open to us.

Together the direct transfers and the higher returns from selling within the Community are estimated to have been equivalent to about 10 per cent of GNP in 1986 and our target must be to raise that percentage point by point in 1987, 1988 and 1989, particularly having regard to the development of our added value in our own food and horticultural areas, which is an essential part of this Government's policy.

Anyone who doubts the benefits accession has brought to our agriculture need only compare the rural scene today in any one of our constituencies with that which existed in the mid sixties before we joined the EC. They will then have the answer in our towns, in our counties and in our cities as to the benefits which it has [2421] conveyed to us. That does not suggest that I would ignore some of the problems that have followed as a consequence of our membership, nor that I make the case that we have been the only beneficiaries from this new sense of community and cohesion. I would like to record that those perhaps who enjoyed least transfer of resources under budget mechanisms may have benefited most under the Common Market since the EC ideal was launched.

I have always opposed the argument of juste rétour and I oppose it even more fiercely today than I did when I was a member of the Council for the European Movement as long ago 1964-65 with the former Taoiseach when we both were active members of that organisation. That principle was unacceptable then and is unacceptable now. No one should ever use the term “paymaster” in respect of any member state of the EC because several of those who would appear on the face of it to be the paymasters derive more benefit from the Common Market and from the political implications of Community membership than perhaps even those of us who enjoy the budget transfers under agriculture, social or regional. The advantages for the strongly developed economies at the centre of the market such as the FDR, France or the Netherlands are so great that when you get an internal market which we are strengthening here, an enlarged market with the enlargement of the Community, they can benefit much more in the development of their trade and exports than we who are distant from the centre.

For that reason it is not a question just of saying who benefits from one aspect or the other. You take it all as a composite picture and approach it as a true Community. Therefore, when I make a case based on the advantages that we have enjoyed, let it not be thought for a minute that I am saying we are the only ones who have enjoyed the advantage. No, as a matter of fact the Community working on the principles of a Community have shared advantages right throughout the Community, not least amongst perhaps [2422] the more prosperous countries of that EC.

Despite the problems we have had and still have about the operation of the CAP, nobody would want us to go back to the position we were in in the sixties where our agriculture depended on the meagre resources and a small consumer market available at home and on access to just one low priced external market, namely that in Britain. In the 14 years since accession we have tried with some considerable success to pack into that short period advances in agriculture and food that took far longer elsewhere. Without Community membership we could not have achieved anything like the progress we did.

Let me raise a note of caution in respect of some proposals now emerging from the Commission which I note have been in a sense enthusiastically and, I believe, too spontaneously welcomed here at home. I am talking about a regime of national aids that have been mentioned which will be brought before the Council of Ministers some time before the price fixing policy concludes in a couple of months. On the face of it there may seem to be some attraction for Ireland in saying that, if there can be a regime of national aids or of Community aids of such a nature and extent that they will give extra money by way of direct transfer to Ireland, that must be a bonus. That may be superficially acceptable, but I must caution against too spontaneous a response to that suggestion.

We have always taken the view, and we will need to be satisfied, that any new developments must not undermine the whole question of Community responsibility, Community preference and CAP support for agricultural development. If any developments proposed in respect of aids, national or Community, to particular regions were in any way to limit the Community role under the CAP, those developments would be very unwelcome from Ireland's point of view. In the course of the next few months and until such time as a conclusion is reached on this I will be looking at it very carefully and ensuring that such developments as [2423] are being proposed are in accordance with (a) Community obligations under the CAP (b) our national interest as a member of that Community.

I said that not all has been plain sailing in our EC experience, and I referred to our difficulties with the CAP. As is well known, for instance, over the past two years the Council of Ministers took decisions, particularly last December, which had a very severe impact on our beef and dairy sectors and which affect our cereal productions. I am thinking first of the milk super-levy which, though expressed to be temporary, prevents expansion of the volume of milk we can produce at any rate in the next few years. I am thinking also of the weakening of intervention support systems for beef, dairy products and cereals that was decided last year.

We all know the budgetary pressures and the pressures of those unsaleable surpluses that led the Community to adopt these measures. Nevertheless, though our agriculture is still very much better off within the Community than it could ever be outside it, these decisions represent a considerable worsening of the system of Community support for the products of main concern to us. They are disadvantages by comparison with the system we knew before 1984 but they are also challenges that have to be faced.

Since taking office, I have made it a priority to emphasise, both in the Council and in bilateral contacts with other Community Ministers — the latest of which I had with the French agricultural Minister late last night in Paris — that the matter cannot be left there as far as the European Community is concerned and particularly economies such as ours, which are so dependent on agricultural production. There must be full and concrete recognition of the impact of these decisions from counties such as ours. I hope I will be able to convince the Commission and my colleagues on the Council of Ministers that the impact of those decisions as we have already seen — the most obvious example is the drop in beef prices during the past few weeks [2424]— is a direct consequence of changes in the intervention mechanism which was passed through the Council last January. This is the reality of the effect of recent decisions and it will be our priority to ensure that at least we get a breathing space before any further actions of that kind are taken particularly because of any budget implications.

Not every decision taken has to have an immediate quantifiable effect. Some decisions which do not have an immediate quantifiable effect can, in the long run, have much more enduring effect and be of much more value to this economy. I should like to refer to one which has recently been proposed by the Commission and for which I have been lobbying support, in the course of my visit to capitals, and that is the tax on fats and oils. No immediate quantifiable benefit will pass to one farmer in Ireland if the Council of Ministers pass that resolution from the Commission this year. The benefit in terms of the reduction on the strain on the agricultural budget will be of the order of about 2 billion ECUs per annum which in turn could only mean that the constant pressure which has been directed through Northern agricultural produce — beef and dairying in which we have a direct and vested interest — will be reduced if not entirely dissipated.

For that reason it is important in our approach to the European Commission, at whatever level, that we do not concentrate on the immediate issue of what is in it for us in Ireland today. We must take a broader view in terms of our Community membership and obligations, sometimes supporting, maybe to the detriment of short term advantage, but to the guarantee of our long term security both for our primary producers and for the whole economy — I quote that as case in point — the proposal in relation to a tax on fats and oils which is being brought before the Council by the Commission. For that reason I have made it a priority to emphasise both in Council and in bilateral contacts with other Community Ministers that we just cannot leave matters where they are in the Community and react to budget problems in the manner [2425] in which the Community has been forced to do during the past few years. There must be a full and concrete recognition of the impact of all these decisions on countries such as Ireland. That recognition must be followed by action to readjust the balance. I am determined to maintain that attitude both in the current price package negotiations, and outside them, until the proper results are obtained.

The cohesion provisions in the Single European Act do, if pursued, give us a much stronger base than ever before for such action. I will come back to this point again. In relation to the specific matters already being discussed on price negotiations I should like to assure the House, and the public generally, that I will continue to press for the maximum dismantlement of our MCAs, for changes in the MCA system which would benefit our processed product exports and for fair treatment of our cereal producers. I should like to stress that any exclusion of processed products which operates as a penalty against our food sector is unacceptable to us. I hope I have been able to gain a degree of support and recognition both from my colleagues in the Council and from the Commission in support of the case I have been making for an extension of MCAs to processed products, cooked beef, jams, marmalades and other items that have been excluded from the application of MCAs which has put us at a very severe disadvantage in our trade with the United Kingdom.

On a more general level I will continue to stress that any future changes in the Common Agricultural Policy must be humane with the necessary compensation or alternatives being offered to producers, that they must be equitable as between member states and that they must be gradual so as to allow adjustments to take place smoothly.

Though I expect the Community to express its solidarity towards us in concrete ways, there are still aspects of these new challenges that will require changes here. In particular, our agricultural production must become progressively more market-oriented and less dependent on [2426] intervention. This is a process that I will be encouraging to the maximum, but success depends primarily on the enterprise and initiative of our farmers, processers and exporters.

With my two colleagues Deputy Walsh and Deputy Kirk that will be a focal point of our responsibility in the Department of Agriculture and Food. We must become less reliant on intervention mechanisms, we must become much more vigorous and aggressive in exploiting the market opportunities which exist. We can thus guarantee that we will have a much more profitable return for our primary producers and our processers and reduce some of the pressures on the agricultural budget which have given rise to some unacceptable developments for countries like us in recent times.

The reduction in interest rates which is a primary aim of Government policy should also help to stimulate the investments needed for a real shift from the intervention store to the market place. I do not want to criticise the fact that we have availed of the intervention store nor do I criticise those who avail of it because it is an essential element of protection but we have to shift to the market place. Clearly too, where the quantity of our output is restricted by Community action, as is now the case for milk, we must maximise the value of what we produce. This means diversifying our production away from the relatively easy options of butter, skim powder and cheddar cheese and towards higher-value products for which there is a real market demand. These are not easy tasks and they cannot be accomplished overnight. But we have no option but to tackle them and to tackle them successfully. I am confident that given the right climate for enterprise and investment our agriculture and food sector has the ability and expertise to achieve these goals.

I turn now to the Single European Act itself, and in particular its implications for the future of our agriculture and food sector. One of the primary aims of the Act is to complete by 1992 a process already well under way — the creation of a single market within the Community —[2427] by eliminating such internal trade barriers as remain. For this country, the balance of advantage lies with the success of this effort. There are still residual obstacles to some of our exports, arising from national restrictions in other member states. The present agri-monetary system can also create barriers and we will press for the elimination of all MCAs by 1992 as suggested by the Commission. The completion of the single market in conjunction with the elimination of MCAs will benefit our agriculture and food sector and is something that we must support.

Another objective of the Single European Act is to make the Community operate more effectively. That reform is in the overall interests of small member states such as Ireland which depend more heavily than the larger ones on the proper working of the Community institutions. It is worth noting here the existence of another safeguard. The “Luxembourg Compromise”— the so-called “veto”— remains untouched by the Single European Act.

Thirdly, the Single European Act contains a further aim which, though not new in itself, is now for the first time being formally and significantly recognised. That is the principle to which I have already referred, that of cohesion, expressing the solidarity between member states. This is not confined to coordination of economic policies; it covers also, and most importantly for this country, the idea that the Community should play a major role in helping the economies of the weaker member states to catch up with the others. Obviously, since agriculture figures so largely in our economy, this catching-up process will have to include our farming sector. Recognition of the cohesion concept at Community level is an important achievement for us and one that has a very considerable potential for benefit.

I would like to mention one further aspect of the Single European Act. That is its emphasis on environmental questions. The Act foreshadows Community measures aimed, among other things, at [2428] preserving the environment, improving its quality and using resources prudently and rationally. We all know the growing and justifiable demands throughout Europe for better treatment and increased care of the environment. This, in turn is causing pressure on the farming sector to conform to a variety of environmental aims. These pressures will develop whether or not the Community takes a hand. I think it is well that the Community should now take the problems into account and be prepared to deal with them on a basis of solidarity.

Irish agriculture has distinct natural advantages here and we must ensure that our environmental protection laws protect the pure and uncontaminated quality of our products. In the course of my recent series of bilateral visits I was greatly impressed that the Ministers for Agriculture to whom I spoke, particularly of the Netherlands and Denmark, have also responsibility for environmental care and protection and that they pursue that responsibility as diligently and as zealously as they do that of promoting the primary producer, in some instances to the extent that they impose taxes on fertilizers that appear to distort the balance of production and growth.

It is my firm view that the Single European Act helps to provide for progress in the Community's effectiveness and for progress in Ireland's economy. It is a positive and useful development and one which we must not evade or undermine. I believe that view is shared by the Irish farming sector in general and with good reason. The Act is a logical development of the earlier Community treaties to which we in this country freely give our assent. Our future is with Europe, with a Community in which we have been and remain free to express our distinctive national views and where we can influence decisions, as I have already indicated we have done. It offers us opportunities available nowhere else and gives us an enhanced role in the world. There must be no question of turning our backs on the Community, of ignoring the opportunities and refusing to participate in progress and worthwhile new developments. [2429] Such an attitude would be one of weakness and folly. This House and the people of this country cannot but take the correct and enlightened course of acceptance which we propose to them at this stage.

Mr. Blaney: Information on Neil T.C. Blaney  Zoom on Neil T.C. Blaney  Let me just say, in following the last speaker, that if I could forget that it is now the end of April I would think I was back in December or November last. The laudatory manner in which the spokesman for the Government has talked about this great institution of the EC and the benefits which it has conferred is only paralleled by the manner in which the Single European Act was introduced hastily and pushed through ruthlessly in this House by the previous Government.

The aspects of it which were taken to task by the then Opposition would seem now to have virtually disappeared. That which was not acceptable then is, for various reasons, apparently acceptable now. I listened to the Minister for Agriculture and Food very attentively and could not but think that in the difficulties he has been outlining and that he hopes to smooth out in so far as agriculture is concerned vis-à-vis the Community and the Common Agricultural Policy, whatever chance he had of smoothing them out and having some clout in his discussion will disappear when and if the Single European Act is fully ratified.

This brings me to the point that I made before Christmas when we discussed the Act, and also since then. Even between Governments, I have been pushing the view that now is the time to renegotiate and straighten out some of the kinks we have found to exist in the manner in which our membership of the Community has developed, or not developed as the case may be. We had and still have a golden opportunity to renegotiate. We would be very welcome to renegotiate by the Community members who are awaiting ratification of the Single European Act. What we could obtain to our benefit would far outweigh any of the benefits that we have so far received, so anxious are the major powers within the EC to [2430] get this sort of sovereignty over all the member states within the Community.

We are as of now a full member of the Community — this must be said again and again — with a virtual veto on any and all matters of real importance. That has been the strength of the small members of the Community ever since its foundation. Certainly, it was the real key to the huge yes vote that was obtained in 1972. Amongst others I campaigned quite strongly in favour of joining, not because we were enamoured with the Utopia that was to come, but because of the realities that if we did not join things could become much worse for us and that our real protection in that big league, in the big pond with the big fish, was the unanimity clause, the veto as it was called. While it may well be pointed out that it was not used very often, the very fact that it existed was our protection and still is, but will no longer be when and if the Single European Act is ratified and put into operation.

Our membership cannot be taken away except with our consent. That we should remember, whether we ratify the Single European Act or not. We are not obliged to ratify it by any commitment already made by our accession in 1973. We also should realise that what we cannot negotiate and renegotiate today we certainly will not be able to or even be welcome to attempt to do after this legislation has gone through. We are not obliged even to hold a referendum to enable the Parliament to ratify the Single European Act.

Getting back to December and to the speeches of the then Leader of the Opposition, his attitude was very explicitly against many of the terms of the Single European Act; whether Titles I, II or III is immaterial. He outlined in a very clear and lucid manner the shortcomings and dangers inherent in that Bill as it then was, but concluded, as he would now wish to point out, that since negotiations had gone so far by a previous administration, we could not but ratify. This would seem to imply that anything done, whether terribly wrong, not so wrong, or [2431] disagreeable, by any previous administration in the international field may not be tampered with, changed, or an attempt made to alter it in any way. One just should go willy-nilly for it, no matter how objectionable it may have been found to be while it was going through under the previous administration.

We might say that if that thesis of the present Taoiseach is to be taken to its extreme, we should now conclude from his statements on this issue that the Treaty is something that we would not want to change, that the Boundary Commission is sacrosanct, that it is totally in keeping with the collaboration that all our Governments are now engaging in with the occupiers of part of our country, that the Border should remain and that it is rightly there. That is the extreme of what is now being said, of the consistency of what was said in December, that the negotiations in regard to the Single European Act had proceeded so far that it would not be right, or we would offend and we might hold up, as we have already done, the other 11 members who have cleared the decks in various ways and accepted the Single European Act.

Should we at this stage be falling over ourselves to come back precipitately after Easter when there are so many other important things to be done in this House, in our community and to our economy, to have a hasty debate on a matter of momentous concern to the future of this country's sovereignty so that we may have a quick referendum to enable a quick ratification of the Single European Act to satisfy those people in Europe who back in the late seventies and right through the eighties have been taking steps quietly without being challenged by Members who represent this country in the European Parliament? When these steps were being taken it was like a snail going to Jerusalem and yet, at the end of the day we feel we must rush in with a referendum without giving the people an opportunity to know what they are voting for. This is entirely wrong [2432] and it is all done because of the inferiority ridden complex that our people, represented by our various Governments, display in outside dealings with international partners. It is the legacy of the ex-con, but whatever it is, it is represented as being good Europeans. We must rush in because negotiations have gone so far. There is a lot in this Act that we do not like and renegotiations should have been started upon in anticipation of this before it came to the House.

The previous Government were blamed by the Leader of the present Government for not taking steps at an appropriate time to renegotiate. I will quote from his speech on the Bill on 9 December last. As reported in the Official Report at column 1933, Deputy Haughey said:

The Government should have used this opportunity to conduct a fundamental renegotiation of our position within the Community. They have not done so, preferring apparently as much for personal kudos as anything else to posture as good Europeans while Ireland's legitimate and urgent case went by default.

What has changed since then except the faces on the two sides of the House? Nothing has altered. What is there depicted by the present Leader of this Government is that renegotiation of our membership is very much needed. It is not something new, something that we need to be ashamed of, or something that would belittle us in the eyes of our partners. It has been done twice before by Britain, once by Greece and some may remember when France walked out, virtually stopping the clock. We would be in good company and we have damn good reason. The present Taoiseach knows it and said it explicitly during the debate prior to Christmas. Even at this late stage we should seek renegotiation instead of galloping off to have a referendum, asking the people to vote blindly for a change in the Constitution. Fianna Fáil are now the Government and they must take the consequences of not properly informing the electorate of the [2433] issues before this hasty referendum is held. What steps will the Government take to ensure that the two sides of the story are known and not just their side or the side presented in December by the Coalition Government?

Recently in a few words, Mr. Justice Walsh in the Crotty case in the Supreme Court defined sovereignty as the right of a nation, a Government or its representatives to say yes or no. When and if we get a referendum result to enable the ratification of the Single European Act, Title III will impinge on that right to say yes or no in vital elements of our foreign policy. One can say what one likes about putting in caveats, conditions or accompanying documents, it will still impinge and will ultimately lead to a situation where our military neutrality will be in jeopardy, not by our decision but by the dictates of other powers. We should get it straight that this is what we are doing and we should not try to make ourselves believe that we are really making no changes.

If things are so bright and good and if we have been doing so well and everybody has been doing better in the Community, why do we want to change it? What is the Single European Act? Is it not two treaties, in fact, an economic treaty and a foreign affairs security and defence treaty lumped together and called the Single European Act? The Single European Act comprises two treaties concocted separately and put together at the last minute, presented, passed and accepted by those who wield the clout in the Community and who are the people who have been doing best out of the Community. The Minister for Agriculture and Food can talk about £930 million of transferred funds for the last 12 months and can say that more will be coming this year, but let us remember that in the first ten years after we joined we lost 70 per cent of the industrial jobs which existed in 1973 as a direct consequence of joining the Community, gradually opening our borders to all other goods. We paid that price on the basis that there was a special place for agriculture which is our primary industry.

[2434] We have not done as we should have done within the context of the CAP, not because of the fault of our colleagues in the Community, but through our own fault, because of our craven nature in trying to be seen as good Europeans. We did not use the veto when we should have used it. We did not need to have milk quotas or grain levies imposed on us, and we did not have to suffer the threat of the withdrawal of support for intervention or the changing of the time of year at which it would operate. We did not need to have these impositions. In our situation when agriculture is of such vital importance and since our total production, even if doubled in all these things, is only a drop in the ocean compared with the total production of agricultural produce in the Community, we could have dealt ourselves a good deal that would have enabled expansion to take place, and would have enabled more of our farmers to make a proper living without finding themselves as they are today earning below the per capita income of 1983, and that with tens of thousands of farmers gone out of business and no longer depending on the land or on agriculture. Our farmers are receiving less per capita now than they were.

We are the people to blame. We are the people who should be blamed, with our cap-in-hand attitude adopted over the years in the belief that that made us acceptable to our partners in the Community. We have been losing out where we could have been winning. It appears we are prepared to throw the lot to them, saying: There you are, no need for any unanimity in the future. Not only will there be a working toward consensus in the future but, under the provisions of the Single European Act, we will not impede efforts to reach consensus on whatever may be the issue involved. I do not know what has come over us but certainly we are not making the best of what would never have been a great job but which would have been the lesser of two evils, that is to be members of the EC.

There was nothing in the 1973 accession conditions that obliged us, for [2435] instance, not to split the Single European Act into what it is, two components, to accept one and exclude the other. There is nothing that obliges us to accept any part of Titles I, II or III. We could conceivably have Titles I and II and not have Title III. We could have Title III and not have Titles I and II. The roller is rolling and we are heading for the country to get their imprimatur on something which was not explained in December last. In fact the explanatory booklet circulated at the time was inaccurate. That is implicit in the Supreme Court judgment in the Crotty case. It was inaccurate. Are we to be given the same again, or shall we be given an accurate outline of what this is all about? I fear we will not be given an accurate outline. That may not be done in bad faith. It may arise from the enthusiasm of Fianna Fáil, Fine Gael, the Progressive Democrats and many others who believe that we should ratify the Single European Act. As all of us can be, they may be blind in their enthusiasm for a certain thing. We do not always see things quite objectively. I would appeal to the House and particularly the Government to at least ensure by every means at their disposal that the electorate will be informed concisely, without a whole lot of attendant legal jargon but in plain simple terms, what it is we are committing ourselves to, what are its inherent implications, that therein rests our sovereignity in relation to foreign affairs and particularly in relation to military neutrality.

Where does it leave us in regard to the only protection we had on the economic front, when henceforth we will have majority decisions, whether qualified or otherwise, as against the unanimity provision that applied to date? Indeed that widened the Community from a membership of Six to Twelve with other applicants knocking at the door. That all took place within the existing terms of the Treaty of Rome. It was on that unanimity clause that we hung so much of our advocacy of joining in the 1972 Referendum. As one who campaigned then — reluctantly concluding that it was the right [2436] thing to do and, having so decided, that we had better do it correctly — I feel I have misled the electorate in my county which incidentally gave the highest “yes” vote of any county, 82 per cent. I feel I misled them if the unanimity provision was not of the essence at that time. That is what I understood, that is what was sold to the people. That is why we received the massive support we did at that time. To my mind we are now taking that away with no furore about it, no big deal. No, we are going to throw ourselves on the mercies of our trading partners in the EC to see us all right, to ensure that we get a better deal than the Minister for Agriculture spoke about today and about which the previous Government boasted not so many months ago.

If one looks at the better-off members of the Community, who were better off when we joined, we find that they are now relatively much better off. Relatively, the gap has widened between the less-well-off and the better-off. It confirms what the Minister for Agriculture has just said, that it is not just those who receive the hand-outs, as they have come to be called, who necessarily do best. Very often those who pay the moneys which provide the hand-outs to the less-well-off countries are the people who are cleaning it up, and they are; they are cleaning it up in a nice tidy little way. There is, first, their 320 million enclosed market. Second, the big fish over there are in manufacturing industry in a very big way. I say: good luck to them, but what are they doing with their excess production? They are importing what we are producing a surplus of, namely, agricultural produce and charging it up to the agricultural account. That has been going on for years. They have been challenged times without number but they are still getting away with it. Agriculture how are you? It was given a special place under Article 39 of the Treaty of Rome. What does it mean particularly when those like ourselves are so mealy-mouthed and have not stood implacably for our rights as a primarily agricultural-dependent country against the big fish who have been cleaning up and who, as a result, [2437] have widened the gap relatively between the state of the poorer countries, such as ours, and the better off such as they? That has been going on and there is no doubt but that it will continue apace now and if and when the Single European Act is finally ratified.

For what are we supposed to be getting these hand-outs? Part of the benefit emanates from the Common Agricultural Policy. Other parts of the benefit emanate from the Regional and Social Funds about which we hear so much. I think we have been promised a large increase in benefit from those two funds after this Single European Act has been implemented. Apparently it will do wonders: it will provide money not there at present within a Community that has been in panic and crisis because of a shortage in its budgetary provisions. How will the provision of the Single European Act produce that money, the extra we are to receive and presumably some other small fry like ourselves? Even if and when we do get it what substitute is it for the non-development of our country in the real sense, the squeezing of our agriculture under these recent changes?

Are we going to accept rising unemployment, with the safety valve only of emigration to prevent the problem becoming too scary, with our debt not capable of being repaid, with farmers' incomes being held at a depressingly low level taking more and more people off the land? We have a real commitment to retain not only present but greater numbers on the land. Are we to become recipients of international unemployment assistance? Will that be our role in the future? Will there be more and more hand-outs from the Regional and Social Funds, a bit of a hand-out here and there when we squeal too much with regard to some part of the Common Agricultural Policy if and when it is retained even in its developing emasculated condition? Because we did not stand up when we had the right, we shall not be able to do so in the future because we shall not have the right any longer.

We are heading towards international dole at present. It may be said that much [2438] of that is our own fault. Maybe we blame ourselves whereas we should be blaming our membership of the EC and the non-operation of it in a proper way as being partly responsible together with our own lack in whatever way. We are in for a rough time and I do not see the position improving. We have a golden opportunity to renegotiate our terms within the EC. We would be welcomed with open arms and we would get a deal the like of which never could have been considered because the other nations within the Community, particularly the big ones, badly want to get their claws on the Single European Act. They want us all in a position where they will no longer have to procrastinate or be patient with unruly, small countries like ours in order to get their way. They will be able to say “Let's vote” and that is the way it will be. There are Members in this House who have experience of some of these people and they would concede that I am not too far wrong. If we give them the power, they will use it and it will not be to our advantage.

Can we hope that, between the passage of this enabling legislation and the referendum, in order to try to sweeten the electorate and to make sure there is an overwhelming vote, there will be negotiations either above the board or below it? Is it possible that common sense will prevail between the passing of this legislation and the holding of the referendum and instead of cowering away, bowing and scraping and acknowledging with thanks what we have got by way of transfer of funds by virtue of our membership of the European Community, we will say: “Here is your opportunity; this is what we want; we want to talk fast; if you talk fast we will get you what you want but in return we want to straighten things out before we enter on that road”? That would not be asking too much.

We are rushing in here two days after Easter Sunday to pass this legislation so that we can hold a referendum within a month. That is draft. It is far too important and far too serious a matter and there is far too little known about it to put it to [2439] the people before the end of May. Once the wheels start turning, there is not much we can do to stop them, particularly as there is no real opposition to what is being done within the confines of the Parliament. Had there been opposition, we would not have had this agreed haste since last December when we passed defective legislation to have it rectified by changing the Constitution and not the legislation. It would never occur to anybody in this House to change the legislation or to renegotiate it in its entirety or in part. Instead we change the Constitution in order to accommodate that which was done in haste in December and is now being remedied in haste also.

There should be a commitment from the Government, agreed to by all Members of the House, that there will be a massive effort made to get all the information surrounding the Single European Act to the people before they vote in the referendum, whether that be through free postage for those who hold different views from the vast majority in this House, whether it be through equal time on the media, particularly the State controlled medium which is the only one the Government could commit themselves on other than appealing to the general media, through RTE radio or television. We should get a commitment that equal time will be given to put the pros and cons to the people who are being rushed into voting in this referendum.

Despite the debate in November and December, and today again, on this issue I am quite sure there are many aspects of it on which many of us, myself included, are not fully clued in. How can we expect the electorate to be clued in to a point where they can make this important and almost momentous decision to change the Constitution? I also ask the Government and perhaps some of the Opposition parties, the major Opposition Party in particular, to support that plea for good coverage of the pros and cons. Leaflets such as those circulated in a general election could be circulated to the electorate if there are sufficient people interested in circulating them, either by free post or [2440] otherwise. I appeal to our national media to give that sort of coverage to the two sides of the story rather than that which emanates from perhaps the front benches of both sides of the House, which is natural. They are the important people and when they speak they naturally get much more coverage than somebody on the back benches or somebody from outside the House. If this is to be done in a fair way, there should be no fears on the part of anybody in the House about informing the public and making it possible for them to be informed by those who do not agree with the vast majority in the House. Those who do not have the same opportunity to get coverage by virtue of their non-high stations in life but who have very particular views against what is proposed to be done here should be considered.

Ordinary things such as facilities provided by the returning officers in each constituency, the provision of registers of electors, agents authorisations at the taking of the poll and so on are the very least that would be required in the present circumstances. It is only fair that those things should be provided so that it cannot be said that, even though we did this in haste, there was no effort made to do it in an informed way in so far as the electorate are concerned.

Are human rights as established and recognised under the Constitution likely to be impinged on by the signing and ratifying of the Single European Act? Perhaps in a legal manner those who are so qualified are in a much better position than I am to deduce this in a positive or negative form from what is proposed. It is not clear whether or not human rights as we know and cherish them in our community may be in danger. They may be changed; there may be different values or different levels and different weight may be given to what we regard as human and fundamental rights as opposed to what other countries in the European mainland actively practise at present. I am not decrying them. They have their views and we have ours. I am asking if fundamental and human rights as we understand them and as we seek to preserve [2441] them will be endangered. Will they be capable of being altered, or will the emphasis be changed by directive from Europe after this Act has been ratified?

Even when this Bill is passed and a date for the referendum is set, would the Government get up on their bikes, take some of the Opposition with them — I do not say that in a derisory way — and go to Europe? If we give them what they want, will this not be a golden opportunity for us to get what we want from them? There is still a lot we need from Europe to which we are entitled but which we lost by default over the years.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Up to very recently the general understanding here has been that in the conduct of foreign policy the Irish Government have had full freedom to act in the way they considered best in the interests of the people. It has been our understanding that in so acting the Government were subject only to the scrutiny of the Dáil and to the necessity to respect the constitutional rights of the individual. It was our clear understanding that the conduct of foreign policy was a matter for the Executive, that is for the Government, and that the courts had no role to play. A whole series of decisions by the Supreme Court have affirmed and reaffirmed that the court has no basis for interfering with the actions of the Executive of the State unless those actions breach, or threaten to breach, the constitutional rights of the individual.

The conduct of foreign policy here has proceeded on that basis since the foundation of the State, and particularly since 1937. Subsections 1º and 2º of Article 29.4 of the Constitution are very clear on this point even if Article 29.4.2º appears to have been dismissed rather lightly in some recent judicial comment. The fact remains that the provision in the Constitution is clear and the Taoiseach himself yesterday recalled the most unambiguous statements in this regard made by the principal framer of the 1937 Constitution.

The world we inhabit is not a static place and there are many different reasons why, whatever our Constitution [2442] or the law might say, we need to reflect occasionally on what common-sense dictates. We cannot live apart from or in isolation from other states. Our relations with them are governed by a series of factors. They are affected, for example, by geography, history, trade relations, cultural ties, political beliefs and even by political divisions. All those factors and many more affect the way we deal with other states and conduct our relations with them. It is therefore totally unrealistic to suggest that in undertaking to adhere to external arrangements, agreements or procedures, a Government is limiting its ability to conduct foreign policy. On the contrary, such a course is an essential part of the conduct of foreign policy. The recent Supreme Court judgment appears to have set aside this commonsense view in a way that has not been contemplated in this country for 65 years and, as I said, in a way that was not contemplated by those who framed the 1937 Constitution. That situation must be rectified and the proper role of the Executive in the conduct of foreign policy must be restated and clarified.

As in the case of an individual, the short term self-interest of a state might appear to indicate that in its relations with others it should seek to gain from them rather than seek to give to them. The reality is of course different. Longer term considerations of political interest and our own interest in shaping world events, which in turn will affect us, will inevitably lead us into undertaking agreements, alliances or treaties with other states. No state can afford to ignore those around it. It cannot operate on the basis that it gives all and takes nothing. Some states have tried to do that and some have even succeeded for longer or shorter periods, but in the end there has always been the inevitable reckoning. No matter how strong a state may be, it has to accept that there are limits to the real scope of its freedom of action in its relations with other states.

No state is completely sovereign in the sense that it can do just as it wishes in its foreign relations. Not even the strongest state has a completely free hand, and [2443] God forbid that we should ever create a world in which any state could feel it has a totally free hand, that it did not have to follow a course which recognises the interest of other states and which accommodates those interests where it has to. In the real world of foreign relations of course such accommodation is the rule rather than the exception and it occurs over a very wide range of foreign policy interests. It is clear, therefore, that any energetic pursuit of foreign policy objectives requires a Government to do what is regarded in the language of those who oppose what we are doing now, as ceding sovereignty.

Thus, no matter what the Constitution or the law might say, or perhaps more accurately what they might be held to say, any analysis of foreign policy which concludes that a Government have no right to bind themselves, to concede sovereignty or to agree in advance to procedures is either wholly mistaken or presumes a degree of megalomania which other states would ignore and probably resist.

That brings me back to where I started, which is our understanding of how foreign policy is conducted with due regard to the requirements of parliamentary oversight and to the constitutional rights of individual citizens. I do not believe our Constitution set out to spancel our Government; neither do I believe that common-sense should allow us to do so. Our understanding of how foreign policy should be conducted has served us well in the past. It has given Ireland a place among the nations of which we can be reasonably proud, although we would always wish to improve further upon it. It is equally an approach to foreign policy which will serve us well in the future and common-sense must not and will not allow us to throw it away. We must therefore put the basis of our foreign policy action beyond doubt.

In the Crotty case the Supreme Court appears to have taken upon itself the right to tell the Executive what it may or may not do in its conduct of foreign relations, even though no question arose [2444] as to a potential or actual infringement of the constitutional rights of any individual. To put the proper conduct of foreign policy beyond doubt in the light of this judgment we need a wider amendment to the Constitution than the one before us today.

We are not talking only about the Single European Act but about the general issue of the conduct of foreign policy. That is why an amendment to deal with the immediate issue of the Single European Act only is inadequate and why the Fine Gael Party believe we need a more complete amendment which would clearly restate and re-establish the role of our Government in this sphere. During the Committee Stage debate, we will propose an amendment that will deal properly with the issue before us. It appears the Taoiseach agrees with this view. Speaking yesterday when considering whether changes should be made in the Constitution he said:

It would certainly arise for consideration, in any such process of review, whether changes should be made in the light of the Supreme Court decision so as to give greater clarity to the power of the Executive in the formation and execution of foreign policy.

He went on to say:

I am prepared, however, when the urgent and immediate question of ratifying the Single European Act has been disposed of, to have discussions with the leaders of the political parties represented in the House, on these wider questions either in the context of wider constitutional reform or otherwise.

The Taoiseach clearly recognises the need for a wider change. The Tánaiste and Minister for Foreign Affairs appears to agree. Deputy O'Malley and Deputy Spring agree also. Why then can we not give expression to that agreement by formulating an amendment to the Constitution which will cover the case?

The issue is clear. It is about the question of which organ of the State conducts [2445] foreign policy and how it does so. We have 65 years of history and accumulated wisdom to guide us. We have a Constitution, two Articles of which — 29 and 34 — suggest the terms of expression we require. I do not consider that it would be a matter of any great complexity to express what we want in clear, unambiguous and constitutional language. I will put forward a formula on Committee Stage to do what we want.

I can see no valid reason for putting the issue off any further. The Taoiseach's reasons for delay are not at all convincing particularly since, as I said, he suggests that he sees the problem in broadly the same terms as I do. The issue is about how we conduct foreign policy but the content of foreign policy is not at issue. Indeed, the curious thing about the judgment is that if they had a mind to — which God forbid — the Government could say today that they intend to join the Warsaw Pact. They could hike off tomorrow to Moscow or wherever the appropriate place is, sign the Warsaw Pact and become a party to it but they could not sign an agreement in Moscow tomorrow under which they would undertake to join the Warsaw Pact next week. When we express it in terms of that kind we can only come to the conclusion that there is, to put it at its very least, an artificial distinction which has nothing to do with the way foreign policy is conducted in the real world.

The content of foreign policy is not at issue. So far as the content of the Single European Act is concerned, the fundamental policy issues were decided on when we voted in a referendum in 1972 to join the European Community. Other issues which do not arise in the European Community context equally do not arise in connection with the Single European Act and, therefore, do not arise here. Attempts have been made inside and outside the House to raise other issues but they are not relevant to this debate. The Taoiseach dealt very briefly but rather effectively with that point in his speech yesterday.

There have been attempts to link with this debate issues which do not arise. [2446] There are reports in this morning's newspapers to the effect that a professor of criminal law, no less, is again raising the spectre of abortion. There is a certain irony in the reflection that if that professor had been successful in a recent electoral contest, she could now be sitting on the backbenches on the other side of the House, and, presumably, supporting the Taoiseach in his proposal to this House. We are being treated again to the tortured parsing and analysing of documents in a way which — far from elucidating what they mean — start off from a preconceived idea of what they might be made to mean and then seek to find justification for the most extraordinary interpretation. That kind of nonsense must be ruthlessly exposed, particularly when it comes from persons in the legal profession who would normally be expected to give a sane and accurate assessment of what is proposed in legal Acts.

It has been well established that the issue of neutrality does not arise in connection with the Single European Act, nor does it arise in discussion of the separation of powers between the Executive and the courts. However, I cannot pass without comment a matter raised by the Taoiseach yesterday in his speech. He said:

The Government understand the concern of our partners with security issues. We are conscious also of the debate now taking place in Europe on issues of disarmament and security and on their implications for the European countries and for the organisations of which they are members. It is only to be expected that with the prospects of major changes in the military and armaments situation that these developments would be commented upon in the member states. That is something about which we need not be concerned as long as it is clear that we are not involved.

I was astonished to hear the Taoiseach say that that is something with which we need not be concerned as long as it is clear that we are not involved. What can [2447] the Taoiseach possibly have meant when he said that we are not involved? Is he seriously suggesting that we should stand aside from discussions on disarmament? Is he seriously suggesting that when discussions take place about the numbers of nuclear armaments located in or threatening Europe that we are not involved? In God's name when will we ever be involved? Surely nobody could suggest that we should stand aside from discussions on disarmament in the United Nations or in the context of the conference on security and co-operation in Europe. Our support for multilateral reductions in nuclear armaments is beyond doubt. It would be nonsense to suggest that we should support the process of multilateral reductions in nuclear armament levels on a general basis and yet take the view that we are not involved when issues directly affecting the continent of which we are a part come up for discussion. If our military neutrality has any point or meaning to it surely it must be that it allows us to take a non-aligned but nonetheless interested and concerned stand on the issue? Surely it allows us to adopt a position which is all the stronger for being non-aligned?

The Taoiseach also said yesterday:

It is surely preferable to build on a policy to which our people are deeply attached and to avail of the opportunities which our neutral status affords to play a distinctive role in promoting the cause of peace and a reduction in armaments ...

That must surely be our objective. It would be nonsense to suggest that that objective does not apply to developments on the European scene. Not only does Title III of the Single European Act not affect our ability to act in this enlightened way, it may actually provide us with the means of having a greater influence. Article 30.7(b) of the Single European Act provides that in international institutions and at international conferences at which not all the High Contracting Parties participate, those who do participate shall take full account of positions agreed in [2448] European political co-operation. This provision surely deserves at least the same prominence in our consideration as Article 30.6(b) of the Single European Act.

I must reiterate that what is at issue here is not simply the ratification of the Single European Act but rather the way in which we conduct our foreign policy. It is not enough simply to resolve the immediate problem in relation to the Single European Act. To do so would leave many other aspects of the issue undecided and would put us in a position where the same conduct of our foreign relations could be seriously hampered. There is no need for us to run that risk and I will be proposing a means by which we can resolve the problem.

I want to make it quite clear that neither the Taoiseach nor anybody else in the House, including Deputy Blaney, can claim to have anticipated this problem at the end of last year. Having reread the Taoiseach's speech made during the course of the debate on the Single European Act on 9 December last in this House, I can categorically state that the problem before us today did not figure in his remarks. It did not arise at the time, it was not anticipated and could not possibly have been anticipated by anybody who takes a sane and realistic view of how foreign policy would be conducted.

Miss Kennedy: Information on Geraldine Kennedy  Zoom on Geraldine Kennedy  I should like to point out that the Progressive Democrats are in favour of the Single European Act in all its provisions and that we want the people to ratify it in the forthcoming referendum.

We oppose the form, not the principle, of the Government's amendment to the Constitution on the grounds that it does not deal with the wider questions admitted yesterday by the Taoiseach to arise from the Crotty case. In this respect, I should like to point out that at least one Member of the House, Deputy Garret FitzGerald in his contribution to the original debate on our EC membership in 1972 anticipated what has happened in regard to the Single European Act. I [2449] should like to remind the House that the original Fianna Fáil wording was “consequent on our obligations of membership” and Fine Gael at the time sought to change it to “necessitated by our obligations of membership”. In column 453, volume 258 of the Official Report of 25 January 1972 Deputy Garret FitzGerald stated:

I have said — and I think this is the view of my party generally — that it is possible that an evolution might take place in the Community, in which the other countries might come to share our views on foreign policy and, as a result, we might come together for other purposes. I have no confidence in this happening in the foreseeable future but it could happen. If it happens, there could come a time when we might consider it necessary to seek endorsement from the people with regard to the further treaty involving other commitments.

All we are saying is that this should be left to the people.

Clearly, the former Taoiseach anticipated the position that arose in 1972 but he did not do so last December.

The Supreme Court judgment in layman's language — and many lawyers have spoken in this House during the last few days — found that the Constitution does not empower the State to ratify treaties which bind the Government in relation to the conduct of foreign affairs. This finding has seemed to stun most senior members of this House as evidenced from their contributions to this debate. Even the Taoiseach, Deputy Haughey, conceded that the judgment was not in keeping with Mr. de Valera's intention to give the Executive the power to conduct our international affairs when he was drawing up Article 29 of the Constitution 50 years ago.

This finding has serious implications for treaties entered into in good faith by Governments in the past and it is equally important for treaties entered into in the future. This general judgment — and we contend that it is general rather than particular to the Single European Act alone [2450]— was made because the Supreme Court decided that Title III of the Single European Act covering European co-operation in the sphere of foreign policy formalised in the treaty the conduct of foreign affairs between EC member states. The majority of judges found that this formalisation in a legally binding treaty was not “necessitated by the obligations of membership of the Communities”. Those were Deputy FitzGerald's words in 1972. These words were written into Article 29.3 of the Constitution and are the subject of the Tenth Amendment of the Constitution Bill.

The Crotty judgment, therefore, has implications far beyond the issue of the Single European Act and touches on the very authority of the Government of the day to conduct foreign affairs. This is why the Progressive Democrats find the Government's restrictive response in their minimalist amendment to the Constitution totally inadequate, cowardly and bordering on the irresponsible. The Taoiseach, Deputy Haughey, more or less acknowledged the validity of the Progressive Democrats' view yesterday in the Dáil. On three occasions in his speech the Taoiseach referred to the wide questions involved in the Crotty case. The Fine Gael Leader, Deputy Dukes, has written two of them into the record. I will not repeat these references.

The Progressive Democrats are a new party with a mandate to deal with the realities of politics. The Taoiseach's statements in his speech are an admission that he wants to avoid them. He is able to call down the words of de Valera on the authority of the Government to conduct foreign policy and yet he is afraid to follow those words himself. If the Taoiseach really believes, as he said in his speech yesterday, that the Crotty judgment raised wider questions, why is he so afraid to confront them? Can he not see that there is a consensus among the major Opposition parties in this House on the broader issues involved? This would not cause trouble in the forthcoming referendum.

The Taoiseach's vague promise to meet with political leaders to discuss the [2451] wider issues involved after this referendum is cowardly and evasive. I want to ask the Taoiseach when does he propose to hold such meetings. Next week, after the Tenth Amendment of the Constitution Bill leaves the Oireachtas, or next year? If the discussions which the Taoiseach proposed yesterday are anything like the discussions which he held with the Leader of the Progressive Democrats, Deputy O'Malley, on the framing of this amendment he may as well not hold them at all. He did not heed one word that was said. Am I to take it that an embarrassed Fine Gael Party were at that stage in agreement with the Taoiseach's minimalist wording? Does anyone inside or outside the House seriously believe that the Taoiseach, Deputy Haughey, will come forward with the two extra amendments required to Article 29 of the Constitution and spend another million pounds on another referendum this year? I for one do not believe this. If the Taoiseach intended to, he could have three amendments for the price of one next month.

The Progressive Democrats are proposing that the Constitution referendum should tackle things in the right way from the very start. We are proposing three amendments and saying that these are necessary if the Government are to have the power which every Government from de Valera's day onwards thought they had up to the time of the Crotty judgment two weeks ago. Our first amendment is designed to give the Government power to enter and conclude binding international treaties touching on matters of foreign affairs. Without our proposed amendment to article 29.4.1º of the Constitution many international agreements which the State entered into in good faith will be open to challenge. The Anglo-Irish Agreement falls within this category.

Our first amendment to article 29.4.3º is necessary to prevent a challenge to any future amendment of the Treaty of Rome on the grounds that it violated the essential scope of the treaty; in short, to safeguard all previous amendments to the [2452] treaty which had been effected since 1973 and to prevent the possibility of having to hold a referendum on each occasion that an amendment to the Treaty of Rome is proposed in the future. We are proposing a third amendment to Article 29.4.3º designed to give the Dáil the power to decide whether we should accept or ratify treaties or other legislation developing in the European Communities in the future.

The Government's narrow amendment simply committing the State to ratify the Single European Act is storing up trouble for the future. It will damage the Government's negotiating position abroad because neither our Community partners nor the Government of the day who will be negotiating on our behalf will ever be sure which future amendments to the treaties will require a referendum in Ireland.

I would now like to deal with the Single European Act. As I have already said the Progressive Democrats are firmly in favour of the Act and we will be seeking a “yes” vote in the forthcoming referendum. We believe that the Single European Act gives this country the opportunity to play an enhanced role in the development of the European Community during the next number of years. All of the main treaty amendments in the Single European Act are in Ireland's best interests in the future: the completion of an internal market by the end of 1992 which this country requires because 70 per cent of our production is exported to the greater market of 320 million people in Europe; we are in favour of the reduction of the disparities between the various regions in the Community through the section on economic and social coherence; and the provision of a Community-based policy on research and development on protection of the environment generally and the working environment for health and safety of workers.

It has now come to the stage where we either accept the terms of the Single European Act or we reject them and take the consequences. There is no halfway house. Both the former Minister for Foreign Affairs, Deputy Barry, and the Taoiseach, [2453] Deputy Haughey, as Leader of the Opposition, ruled out any renegotiation of the Act last December. Undoubtedly the most controversial area of the Single European Act is Title III concerning the provisions relating to European co-operation in the sphere of foreign policy. This is the part of the Act which the Supreme Court ruled as unconstitutional. It is the part of the Single European Act which is supposed to compromise “our traditional policy of neutrality” and prevent the Government from pursuing an independent foreign policy. I would like to address this issue because many younger people are concerned about this. Their fears are groundless. These arguments are bogus arguments. This country has not been neutral in the sense that many Irish people believe that we have operated a traditional policy of neutrality for years.

If we were a really neutral country would Mr. Haughey's first Government in 1980 have been able to offer the prospect of a defence pact to the British Prime Minister as a negotiating tactic to put Anglo-Irish relations on to a new plane? If we were a really neutral country would not the last Coalition Government have immediately condemned the US bombing of Libya a year ago? This did not happen because we could not offend the Americans from whom political and financial help was needed in support of the Anglo-Irish Agreement. If we were a really neutral country would there have been such a strong backlash in Britain and in Europe generally in 1982 when, again under Deputy Haughey's leadership, we refused to go along with our EC partners on sanctions during the Falklands War?

Since I first sat in the Press Gallery of this House over ten years ago I have listened to one Government after another making allegations about the sell-out and about the safeguarding of our traditional policy of neutrality. I want to make the point that we have not been neutral in this political sense for many years and that Title III of the Single European Act relating to European co-operation in the sphere of foreign policy [2454] merely sets down in black and white what has been happening since we joined the EC. That decision to join the European Community meant that we, along with every other member state, pledged to pool some of our sovereignty in the greater interests of the political union of Europe as a whole.

We were not a politically neutral country when the Progressive Democrats were formed last year. We reject the catchall phrase of “our traditional policy of neutrality” as a realistic representation of what we are. We are militarily neutral and this position is formally recognised for the first time in two paragraphs of section 6 of Article 30. We are pledging ourselves to be ready to co-ordinate positions more closely on the political and economic aspects of security. Any further co-operation will be done by certain countries through NATO or the Western European Alliance. This does not include Ireland. There is no compromise nor is there a threat of compromise to our policy of military neutrality in Title III of the Single European Act.

At the same time I should like to point out that the declaration by the Government of Ireland being lodged by the Taoiseach in different EC capitals along with the Single European Act will have no legal validity whatsoever and in that sense is merely political posturing on the Government's behalf.

The final issue I should like to raise is the Taoiseach's current position on the Anglo-Irish agreement. Quite apart from any possible inconsistency with Articles 2 and 3 — his original position in Opposition — the agreement is probably now open to successful challenge on the ground that it violates Article 29.4.1 of the Constitution in that it ties the hands of the Government in relation to the conduct of their foreign affairs policy. Like Title III of the Single European Act the agreement seeks to formalise in a treaty form external affairs policy co-operation in relation to Northern Ireland. It also has a formal secretariat and intergovernmental council. Unlike the Sunningdale Agreement it is a formal treaty.

Therefore, the forthcoming challenge, [2455] to the agreement, the challenge referred to in the Sunday Press of April 19, will not fail, unlike Boland's case in 1974, on the grounds that it amounts to a mere statement of policy. Thank you, a Leas-Cheann Comhairle, for allowing me to speak today, I had been waiting since before lunchtime.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  So have a lot of us.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Patience is always rewarded.

Miss Kennedy: Information on Geraldine Kennedy  Zoom on Geraldine Kennedy  I would like to ask the Government if they have taken legal advice on the implications of the Crotty judgment for the Anglo-Irish Agreement and, if so, what was that advice? The Minister for Foreign Affairs has a responsibility to give the House that information. The Progressive Democrats would like answers to these two questions before this debate ends. In the meantime we will be pressing ahead with our amendments tomorrow to try to change the scope of the Tenth Amendment of the Constitution Bill. Our voting pattern on Second Stage will be influenced by the Government's attitude to these amendments and we hope to be able to push them tomorrow.

Mr. Kemmy: Information on Jim Kemmy  Zoom on Jim Kemmy  My party and I support the steps towards political and economic integration contained within the provisions of the Single European Act. While recognising that any international treaty by its very nature diminishes the degree of independence exercised by the countries signing such treaties or agreements my party are satisfied that the Single European Act in no way impinges on our neutrality. More importantly, my party view in a positive way moves designed to unite member states of the EC.

Because I regard the proposed amendments tabled by the various parties as opportunistic and divisive I will be supporting the Government on this issue. My attitude to this question is guided by a recognition of our common European [2456] tradition of democracy, liberty and human rights, in general, especially those of ordinary working people. My party's commitment to Europe does not inhibit us from opposing or criticising any of the policies emanating from the EC, such as the Common Agricultural Policy. Our attitude is also motivated by our desire to strengthen the socialist influence in Europe recognising that Ireland has the weakest and most fragmented socialist movement in the EC.

We have plenty of little islanders who see our country as God's gift to Europe. These people want to have their loaf and eat it at the same time. This issue has also flushed out the kind of introverted nationalism which has for so long retarded the progress of our country. Let us learn from the example of Europe. Great traditional enemies in European history such as France, Germany and England have fought many wars but have buried their long and bitter differences and have come together in close political unity. This is a natural and logical development but some people want us as a country to stand aside from these developments and this unity.

Alas, Ireland is not free from these criticisms. Last December in this House when Labour were in Government their Leader, Deputy Spring, who was then Tánaiste, made perhaps the strongest speech in support of the Single European Act. Not only did he not raise any objections at that time on neutrality or on any other aspect of the Act, he strenuously denied that this Act in any way infringed our neutrality. His speech is well worth reading by observers of this debate today. Similarly, Fine Gael and the Progressive Democrats, who had their members here at that time, had no qualms whatsoever about the signing of that Act but in recent months and weeks they appear to have got a rush of blood to the head. It should also be said that at that time Fianna Fáil who were in Opposition were opportunistic and evasive.

There is at least some consistency in the opposition of The Workers' Party to the Act but there is little else which can be said about their attitude. They want, [2457] as far as I can understand, to have the Act renegotiated but how this is to be done and how the other 11 member states are going to agree to this course is not explained by that party. As a socialist I am disappointed that I have heard little socialist talk in this debate. I have heard very little or none from the Labour Party and apart from one final flourish from Deputy De Rossa no socialism whatsoever was contained in any of the speeches. That is a serious reflection on the paucity of ideology and doctrine of the Left at this crucial time.

In their collective attitude to the Act the Irish Left are trying to give the impression that they are on the side of the angels but the reality is that it is the Irish Left who are out of line with the great European socialist parties who have a long history of anti-fascist struggle and fight. It should not be forgotten that one of the chief architects of the developments behind the Act was Altiero Spinelli, the great anti-fascist fighter and Left-wing activist of Italy. I am sure there are few Members who know anything about him and that is an indication of how much Irish socialism is out of touch with the European mainland. The original initiatives for unity came from the Left, from Spinelli and many other great European socialists.

In all treaties and agreements there must be give and take and in the end something is won and lost. The same is true of the Act under discussion. I am not a legal expert but I have come to this House with some common sense or, perhaps in this context, some uncommon sense. It is my view that the Supreme Court decision was wrong. Two of the judges involved in the majority decision appear to have based their judgments on an incorrect interpretation of the Act. While the Supreme Court has an important role to play in our society, we should not be over-awed by it. The members of that court are not infallible, and, above all, are not above criticism, no more than we are. When a country negotiates an international treaty or agreement it cannot continue to preserve its absolute independence and have total freedom of [2458] choice in all matters. Agreements are two-way or, as in this case, 12-way exercises. In those circumstances it is very difficult to make an absolute principle of neutrality. As an absolute concept neutrality is a lovely principle to contemplate until the cows come home but sad to say, in the real world neutrality on any issue does not guarantee justice and peace. Indeed, it often guarantees the opposite. I see very little virtue in being neutral on questions of oppression and evil. Writing neutrality into our Constitution at this stage would be merely gilding the lily, an exercise in hypocrisy and deception and I am opposed to that.

I regret that the socialist case has not been put in the House by other Members. That is a sad reflection on the House. In a flourish Deputy De Rossa said that his party supported the concept of a united socialist Europe, a fine sounding concept, but how is he going to achieve that? How will it be furthered by The Workers' Party opposing the Single European Act? What does that phrase mean in an Irish context? Above all, what are The Workers' Party doing to bring that about? Opposing the Single European Act will not do anything to achieve that end.

The Progressive Democrats, who have left the House, have been suggesting that we should broaden the provisions of the Act. They want to give a blank cheque to the Government, and future administrations, on this and other issues. I would not go down that road at all. Deputy O'Malley, in his criticism of the motion, described it as a nit-pickers' charter. His amendments, referred to by Deputy O'Kennedy, appear to me to fit that description admirably. As a lawyer he is aware that all laws have been nitpickers' charters for the legal profession. The pickings have been very lucrative for many lawyers and some of them have done very well from the cases referred to in the House. It is worth bearing that in mind. In my view the amendments proposed by the PDs would amount to nothing more than a cure that would be worse than the disease. I see a case for a new Constitution if we were to go down that road.

[2459] I do not accept the statement by the Taoiseach that we have little or no choice in this matter. We have a choice, a pro-European choice which would be positive and constructive. The wording proposed by the Government is simple, clear and concise and I support it. In my opinion the Act is nothing more than a logical extension of our entry to the EC. Fine Gael, Labour and the PDs were in the House last December and had ample time to put down all the amendments they wished if they had reservations about the Single European Act but they did not do so. In fact, members of those parties did not criticise it and, consequently, I do not see much virtue in their opposition today. Indeed, Raymond Crotty wrote to every Member on 8 December last outlining his objections to the Single European Act and the motion before the House but he did not get any response from those parties.

It would be a good thing if in conjunction with a debate on the Single European Act the House considered the operation of the Common Agricultural Policy. Some people believe that the CAP was the best thing that ever happened to this country but, as a socialist, I do not hold that view. I am totally opposed to the servile, obsequious attitude shown by the Labour Party to the Common Agricultural Policy when they were in Europe with a strong voice for about a decade. All parties in the House hold the view that the CAP functions as a regional policy in Ireland. In my view it does not; it functions in the opposite way in that it has created wealth inside the farm gates and thrown money at farmers and it has been used foolishly and, in many ways, squandered. It has not done anything to create jobs outside the farm gates and I am more concerned about that. However, because the Members of the House are afraid of the farmers' lobby, people bow to the CAP and see it as the panacea for all our ills although it has led to lopsided development in Irish agriculture. The CAP has not done anything to create employment for ordinary people.

[2460] I am taking a different stand from other Members who call themselves socialists. It is my view that they are mistaken on this issue and are very foolish. Their arguments do not have anything to do with socialism. They are merely tail-ending the capitalist parties as they have done on so many occasions in the past and they are not doing it in any original or positive way. I am casting my vote in favour of the Government's wording.

Mr. Birmingham: Information on George. M. Birmingham  Zoom on George. M. Birmingham  In reality there are two questions before us, one of substance and one of procedure. Inevitably, because of the circumstances in which we have been recalled after Easter, that question of procedure has tended to figure prominently in the debate but it is, of course, only a secondary question. The question of substance is, what should our attitude be to the Single European Act. That requires two things of us. First, it requires a determination of facts as to what the Act is and what its implications are and then it requires that we make a judgment. It is important that that is the way we approach it. We should first identify the facts and then make our judgment because much of the comment on the Single European Act to date has been based on entirely false hypotheses. Much of it has suggested that we are presented with dilemmas which do not exist at all.

It is true that, if we had to decide whether we wanted to adhere to a Community that no longer retained a veto, serious questions would need to be asked. It is true that if questions of neutrality were on the table we would have to think long and hard but, of course, none of those issues arises any more than does the red herring presented in this morning's newspapers in relation to abortion. The reality is that the Single European Act is a short document that was negotiated with our full and active participation and was signed with our full agreement. Some who support the Act's ratification do so with a certain lack of enthusiasm. They suggest that there is an EC train in full flight on which we are rather reluctant passengers unsure of what the final destination [2461] is and that we have a choice of staying there, however uncomfortably, or jumping off and the question is, which is the more dangerous. That is not the way it was. We were enthusiastic participants in this procees. We supported the convening of the inter-governmental conference. We have consistently taken a position that is more advanced than many of our partners on the whole question of European union.

What emerged was, for us, limited and, to that extent, disappointing. It certainly was limited in terms of the ambitions of Signor Spinelli and it was limited even in comparison with the more modest aspirations of the Dooge committee. Yet, when it emerged there was for us a sense of relief because at last an Instrument had emerged which offered the prospect of giving the Community a new impetus. It should be remembered that it was an impetus towards its fundamental and long-term objectives. There has been a suggestion that somehow or other the Single European Act involves, whether because of excessive zeal and enthusiasm or for more sinister reasons, forays into uncharted waters but nothing could be further from the truth.

We have participated fully and effectively and that is shown by the way in which so many of our concerns are specifically responded to by the provisions of the Single European Act. Central to the Act is the question of the completion of the internal market. Listening to some Members one would get the impression that this was a new concept that we had to make up our minds on. That was at the core of the Community we joined in 1972. The extent to which that is so can be seen from the fact that so many people refer to the Community as the Common Market. We joined believing it was in our best interests and the lessons learned since then confirmed that view for us. The fragmentation of the market has been one of the greatest obstacles to economic growth. It has cost the Community 2 per cent of GNP. For us, the most export dependent country in the developed world, its attainment is of enormous [2462] importance. We export 70 per cent of our goods to the European Community. We have survived in what has been a common market in name only. It is true that there has been progress in removing tariff barriers. However, the removal of non-tarriff barriers has proved stubbornly awkward. The Single European Act addresses this question and in particular procedural questions in order to achieve greater progress.

There is recognition of our concerns in regard to the insurance industry and the fact that we could have problems in relation to fiscal harmonisation. That area is excluded from the provisions which are subject to majority voting. It was recognised by our partners that a genuine internal market cannot be created without addressing the question of regional disparities. One of the disappointments of our membership has been the failure to see a genuine regional policy emerge. It is a source of disappointment, as Deputy Blaney said, that those regional disparities which existed at the time of our membership have not narrowed appreciably. When we joined the Community the Treaty of Rome genuflected in that direction but only in the Preamble to the Treaty. In this Act for the first time there is provision to address that disparity. The Single European Act is designed to overcome that failure which was one of the real disappointments of our membership.

The potential benefits if the Act is enacted have emerged. There would be a review of the Structural Fund. There is the prospect of a doubling of the Regional Fund. These will indicate how important it is for us that the question of convergence has been placed very firmly on a European agenda. It has been given an impetus by the Single European Act. There are a number of other areas such as the courts, the enhanced role of the European Parliament, the strengthening of the role of the Commission, which is so often the friend of smaller countries, which I should like to touch on but time does not permit.

One other area which is likely to figure [2463] prominently in that debate is European political co-operation and the suggested threat to our neutrality. I address this with considerable reluctance because in many cases I have doubts about whether one is addressing people with open minds. Some of those who protest loudly —they are represented most particularly in this House by The Workers' Party — about their anxiety for a neutral policy display a remarkable un-neutral policy themselves and in contrast their policies slavishly follow those of the Soviet Bloc. One thinks of the policies pursued by The Workers' Party on the Middle East, on Iran-Iraq, on human rights violations in the Eastern Bloc and one shudders when one recollects the intervention from them during the debate on Soviet Jewry. Methinks they protest too much.

There is nothing new in European political co-operation. The fact that we were joining a political community was identified in the most specific terms by the 1972 White Paper published before the referendum. Since then we have participated actively in it. That participation has given our foreign policy a depth and a reality it might otherwise have lacked. It is not so long since our foreign policy was largely confined to an annual hibernation to New York during the autumn and winter months. It was a Minister from the party opposite who was most associated with that way of conducting foreign policy. It is not so long since a Minister of my party was able to address himself to the Middle East question by urging the Jews and Arabs to settle their differences in a Christian fashion. It is improbable that an Irish Foreign Minister would address the complex problems of the Middle East in that fashion. There is no need for this curious sense of inferiority complex in terms of our participation in European political co-operation.

On a number of issues we can recall real achievements — in the area of the Community's policy on Central America it is fair to say that the approach we advocated is clearly distinct from the American position and has now much [2464] greater support within the Community than might otherwise have been expected. The Community position that has evolved is much closer to what we would argue for than the position some of the larger countries would naturally embrace.

That is true also in the area of the Middle East. The Minister for Agriculture and Food touched on this during his contribution. Historically the EC has seen the Palestinians exclusively as a refugee problem. We and the Italians argued otherwise and our point was accepted in the Venice declaration. As regards South Africa it is true that the Community progress has been much less than we would like to see but we have, however grudgingly, nudged the Community along the road to sanctions. The area of development is another one where Ireland has been to the fore in arguing that the only basis for determining whether a country should receive aid is its need and not its ideology. That was pushed very strongly in relation to Kampuchea by Deputy O'Keeffe when he was Minister of State. In my time I remember arguing the need to maintain aid to Ethiopia notwithstanding the abhorrent nature of the regime there. There is no need for this extraordinary inferiority complex. We have a right to say no and to go our own way. We exercised that right, in my view unwisely, during the course of the Falklands war and more recently we have seen Greece do so on the question of alleged Libyan and Syrian terrorism.

The original White Paper suggested it was natural and proper that we should want to co-operate with democratic states which, in spite of their different national characteristics, are united in their essential interests. Of course it is true that we come to that table from a different perspective and that we have a different perception. That has been recognised by our partners. It is recognised in Article 6(c) of Title III which clearly indicates that those members of the Community who are members of the WEU or of NATO should discuss military matters within those fora and not elsewhere. That [2465] article was considered by Justice Walsh who offered an alternative interpretation. Basically he suggested that it was open to the interpretation that we were not in a position to veto any of the other countries having these discussions within NATO or the Western European Union. It may be, and I am sure it is the case, that Mr. Justice Walsh is linguistically correct, certainly it is linguistically arguable but I have to say that he was not giving those words their natural and probable meaning and the interpretation for which he contends is to ignore reality.

Nothing in the Single European Act prevents us from being as neutral as we choose. However it is curious that we have never had a proper debate on neutrality in this House. We have been told occasionally that we are not ideologically neutral. Frankly this does not add greatly to the sum of human knowledge, but that is about the extent of the analysis to which our neutrality has ever been subjected. The time is now long overdue to have a structured approach to the consideration of foreign policy questions in this House. Just before the general election I responded to a debate in Seanad Éireann where Senators were seeking the establishment of a joint committee on foreign policy. I hope that the views expressed there will be taken on board by the present Government and that we will see the emergence of a committee charged with the task of making a serious contribution to Ireland's foreign policy.

I am satisfied that the Single European Act is in both Europe's and Ireland's interests. I think it is important that we do not get into the habit of talking as if Europe's interests and Ireland's national interest are somehow separate and distinct, because our national interests are served by a Europe which is effective and dynamic. The question then is how are we to ratify the Single European Act? It is true that the course of action we recommended proved ineffective and the Supreme Court indicated that it was not possible to adhere to Title III in the way we had suggested. Deputy O'Kennedy, the Minister for Agriculture and Food quoted with considerable smugness from [2466] the Official Report of the debates before Christmas. He did not quote very completely, because neither he, the Taoiseach nor anybody else in this House suggested we would find ourselves in the difficulties which we are now experiencing. The possibility was never floated. Those who raised constitutional questions during the course of that debate did so when they queried whether the amendment could be deemed to have been necessitated by our membership of the Community as required by Article 29. The issue during the course of that whole debate was whether changes in voting, the extra court, the enhanced power in areas like environment and so on represented an infringement of either the legislative or the judicial power here, and so could be unconstitutional. But the Supreme Court found the European Communities (Amendment) Act constitutional, so that nobody is in a position to say “I told you so”. Let me say by way of parentheses for Deputy Geraldine Kennedy's benefit when she was giving us a history lesson about the alternative wordings which were on offer in 1972, whether it was to be amendments necessitated or those consequential on. If she turns to the Supreme Court judgment delivered by Chief Justice Finlay on the question of the constitutionality of the European Communities (Amendment) Act she will see that neither the question of necessitating nor whether it was consequential arose and they were in fact able to find that Act constitutional by an entirely different route. That is what they were talking about at that stage. We were talking whether a constitutional challenge could be set up to the European Communities (Amendment) Act and the Government said it could not. What the Government said on that point was right. It is true that we now find ourselves in an unexpected situation. I do not believe that any of us can take any satisfaction from the position in which we find ourselves. Clearly those who argue for a particular course of action have to regret the fact that we have been shown to be incorrect. Equally the Fianna Fáil Party's performance seemed to be far from one [2467] of universal satisfaction. In fact only a few weeks ago their then Chief Whip and now Chief Whip was writing to the CND assuring them that Fianna Fáil would be opposing the Single European Act. Now apparently they will be tramping the highways and byways about the merits of this measure. It must be a source of embarrassment to Deputy Brady if to nobody else. The Progressive Democrats may suggest they are pristine pure in all of this but their performance during the course of the debate in the last session bordered on the bizarre. As you will recall, on successive evenings the same question was put to the House. On the first evening they voted for and on the second evening they voted against. Deputy O'Malley in the course of his contribution, speculated that if you had a differently composed Supreme Court you might have had a different judgment. It may be that a different number of PDs turned up on the second from those who turned up on the first evening but it is factually the case that when the same question was asked twice the first night they said “no” and the second night they said “yes”. I am not sure there is a great deal of glee there for them.

We have had a judgment which was not expected, and as we said a judgment which, to quote the Taoiseach, has caused widespread surprise. I have to say that I am part of that group of people who were surprised. I found the judgment very surprising indeed. I preferred the reasoning of the minority and of the three judges of the High Court. Our democracy is based on a separation of powers. There have been a number of Supreme Court judgments in the past that have dealt very specifically with that question. Some of those have been areas of legal moment and political controversy. One thinks of the Padraic Haughey case, the Sinn Féin funds case and several others. In all of those cases the Supreme Court was zealous to police the separation of powers. It was also concerned to define its own jurisdiction. It has on a number of occasions set out the limits of its jurisdiction, and it does not see it as [2468] its function to interfere with the actions of the Executive, unless the constitutional rights of an individual citizen were threatened. In the Crotty case no question arose as to the potential or actual infringement of the constitutional rights of anyone. Notwithstanding that, the Supreme Court took to itself the right to tell the Executive what it may or may not do in the conduct of Irish foreign relations. The Supreme Court has played an honoured role in the evolution of Irish constitutional law. Judges like Mr. Justice Walsh, like the late Cearbhall Ó Dalaigh have made an enormous contribution to ensuring that the Constitution is not seen by the people as an arid document but the source of vindication of their personal rights and of their individual liberties. Much of the success of the Supreme Court has been its recognition of the limitation of its own role and that recognition has enhanced its role.

Now we have a decision which seems to me to cause considerable difficulties. However, we live with that decision and we make the best we can of it. We are aware that the Supreme Court has frequently stated that it does not regard itself as bound by its own previous decisions. It may be therefore that there will be another opportunity for the Supreme Court to return to this subject. I would like to think that they might do that and I believe there would be a great welcome if they were to do so. Whatever about what we might have done or how we might have expected a different judgment, there will be a constitutional referendum. The question is what form should it take? What is offered is a minimalist approach sufficient for the day. Nobody seems to be arguing with any conviction that that is sufficient in the long term or even in the medium term. Implicitly that has been recognised by the Taoiseach in his offer of consultations with the other party leaders. Explicitly, as reported in the Irish Independent, that is recognised by the Minister for Foreign Affairs. Therefore, the question is whether we are prepared to do something about it now.

[2469] During this debate question marks have been placed over a whole range of the State's international obligations, matters as fundamental as our membership of the UN and the Anglo-Irish Agreement to matters, if not as trival, certainly as specific as customs agreements at Shannon, half a dozen treaties amending the Treaty of Rome, GATT and some others that do not spring to mind. All of them have had question marks placed over them in this debate. Maybe if a series of plaintiffs wander off to the High Court or on appeal to the Supreme Court some of those question marks will be found to be unnecessary and can be removed, but the very existence of those question marks is damaging. They should be removed as soon as possible and they can quite easily be removed.

The question then arises: why should they not be removed now? The Taoiseach in arguing against it says that his basic reason is the question of delay, that we owe it to our European partners to get all of this sorted out as fast as possible, that even making the utmost haste we are still going to be six months in default and therefore we need to keep it simple to get it done quickly. There is no logic in that because an effective amendment, one that addresses the real cloud that has been cast over our capacity to conduct foreign relations, takes no longer to put before the people than this altogether inadequate amendment now before us. Then he suggests that it could be divisive. What has he in mind there? What is he thinking about? I am left in the dark, but let us consider whether what is being suggested could prove divisive.

All that is being suggested is that we simply restore the situation to what every Member of this House and everyone who took the slightest interest in foreign policy always believed it to be, which is that the conduct of foreign relations is a matter for the Government subject to the authority of the Dáil. That is what President de Valera thought it was and what every person who has held office as Minister for Foreign Affairs since then has believed his responsibility to be. [2470] Drafting such an amendment poses no difficulty. Deputy Kemmy seemed to be entirely out of character in speaking about the danger of giving blank cheques, but if people have genuine fears in that area — it seems to me there is no basis for them whatever — it would be possible to draft an amendment that would simply put beyond doubt the status of all international agreements already entered into by the State.

I cannot believe that that could possibly be a source of controversy. The people would simply be told that the State was bound by what they always thought it was bound by anyway. It seems that the Government, in perhaps understandable anxiety, decided to respond quickly and have not thought this through properly. Second thoughts in this area would be wiser, and I urge very strongly that the Minister might hint that the Government are open to second thoughts when he is replying to this debate. Whatever about the procedural questions — and our clear view is that a wider amendment is required — it is important that there should be a unity of purpose amongst all the parties in this House who are committed to the EC and to the ratification of the Single European Act.

Nobody should feel that, because the House may divide this evening or may divide tomorrow on Committee Stage, there is any weakening of that common sense of purpose amongst the parties. All of the parties have an obligation to canvass and to put the case for our continued effective membership of the Community as actively as possible between now and 26 May, because that is what is at issue. It is true that we are not going to be thrown out, but what is at issue is whether we are an active, participating member or second class citizens. I have no desire to be a second class citizen. I ended my contribution before Christmas by reminding people — or reminding myself I suppose — that my first recollection of political activity was putting up posters in O'Connell Street which said, “The balance favours entry so vote ‘yes’”. They were posters from the Irish Council of the European Movement at [2471] the time. I do not know whether I am agile enough to go climbing lamp posts in O'Connell Street at this stage, but I hope to be able to contribute actively to ensuring a very substantial “yes” vote.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Deputy Emmet Stagg. I advise the Deputy that I will be obliged to call on the Minister at 5.30 p.m. The Deputy has five minutes.

Mr. Stagg: Information on Emmet Stagg  Zoom on Emmet Stagg  As one who campaigned personally and vigorously against our entry into the EC in 1972 and whose party led that campaign against acceptance of a very limited Treaty of Rome, I have witnessed the realisation of the worst predictions of our party at that time. There have been short term benefits for Irish farmers arising from our membership. Native Irish industry has been decimated. We have record breaking rates of unemployment and the services we can provide in health, education and welfare are seriously reduced and in some instances are being dismantled. Our food prices are artificially inflated to give producers prices for goods that are not needed. The surplus is stored at enormous expense while many in our society go without, and millions in the exploited Third World — the exploitation in the first instance being by our European partners as colonisers and imperialists and later and at present as long distance economic exploiters — starve to death while we build stores in which lifesaving, lifegiving food, beef, grain and butter, lie wasting. There are new examples of this massive scandal at present under construction in my constituency. This is very far from the near Utopia promised by advocates of our membership of the EC in 1972.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  At least we got some women's rights.

Mr. Stagg: Information on Emmet Stagg  Zoom on Emmet Stagg  That being the result of the EC, I will accept the democratic will of the people in the matter. I can hardly be regarded as a supporter of the present EC or what has come to be known in the jargon term as “a good European”. [2472] Neither do I suggest that we turn the clock back by leaving or withdrawing from the EC. As a socialist and internationalist I recognise the need for and desirability of international solidarity of working people and nations and the necessary fora and institutions to give it practical effect. I am not to be regarded as some form of isolationist or narrow nationalist living on an ever more poverty stricken or SPUC dominated island separated from Europe. It is not my wish to be so interpreted.

I believe we can maintain and develop our place in Europe, that we can positively introduce the many desirable reforms of the Common Market and be a force for peace and nuclear disarmament in that arena. For example, it would be highly desirable for the Government at this time to state publicly their support for the movement and proposal to remove nuclear weapons from Europe and thereby encourage positively the abolition of the constant and unthinkable threat of nuclear war. At present our Government are free to do so, but if Title III of the Single European Act is ratified without qualification our ability to take such independent action will be seriously restricted.

The Supreme Court decision demonstrates clearly that the Constitution legally protects the sovereignty of our nation and states specifically who may decide foreign policy for our State and people. Title III of the Single European Act has been found by our Supreme Court to be repugnant to our Constitution in so far as it infringes on our sovereignty and independence, thereby inhibiting our ability to remain neutral and develop our neutrality in a positive way. I welcome that decision and I am not concerned as to who is embarrassed or annoyed about it.

In this situation the Government are faced with a number of choices or options. They can inform the partners in Europe — we should be mindful here that we are talking of a minority of European nations all of whom belong to the nuclear military alliance NATO — that the Single European Act is repugnant to our Constitution [2473] and cannot therefore be ratified by an Irish Government. Let it be clear that without such ratification the whole Act falls not just for Ireland but for all the other EC countries also. The EC in that situation would continue as heretofore under the existing Treaty of Rome as accepted by Ireland in 1972. The question of our being expelled or having our status reduced to second class citizenship within the EC because we failed to ratify or accept the Single European Act does not arise and is put forward simply as a smokescreen by those who wish to rush us headlong into economic, political and military union with the members of NATO regardless of the cost to our independence and sovereignty. This possibility has been ignored and has not been examined.

The second choice of the Government is to advise the other signatories of the Single European Act that Title III of that Act presents unacceptable constitutional requirements and that the Single European Act cannot be ratified by Ireland unless these sections which are repugnant to our Constitution are renegotiated.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I am sorry to interrupt the Deputy but I must now call on the Minister for Foreign Affairs.

Minister for Foreign Affairs (Mr. Lenihan): Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  I would first of all like to thank Deputies on all sides of the House for what has been a very constructive debate. It is clear that there is a total appreciation by the House of the vital importance of the issues before us and a willingness on all sides to consider these issues carefully. I am sure that the positive spirit we have witnessed in the House in the past two days will be reflected in the forthcoming referendum campaign and that as a result a fully informed electorate will be in a position to make a proper judgment on the issue we will be placing before them. I am confident that their decision will be in favour of our continued and full participation in the construction and improvement of the European Communities.

[2474] There is no doubt as to the main issue which has emerged from the debate and that is whether the amendment to be put to the people should be confined to the implications of the Supreme Court judgment on the Single European Act or whether it should deal with the wider implications of that judgment for the State's capacity to conduct its foreign relations.

The Taoiseach when opening the debate, explained in some detail the reasons the Government decided to confine the proposed amendment to the implications of the Supreme Court decision for the ratification of the Single European Act. I wish to reiterate the basic points he made and the Government came to their decision.

After the Supreme Court delivered its judgment, the Government gave serious and detailed consideration to all the implications. We had to bear in mind that at the time of signature of the Single European Act the twelve member states made a political commitment to ratify the Act before the end of 1986 in order to allow it to enter into force on 1 January 1987. For reasons we all know, it was not possible for Ireland to ratify by that date and we now find ourselves, nearly four months after our eleven partners have completed their ratification procedures, still in a position where we cannot go ahead. Even proceeding as rapidly as is now possible to restore the situation, it will not be possible for the Single European Act to enter into force until six months after it was originally intended that it should do so.

Thus whatever about the other complications of the Supreme Court judgment, and I agree that they could be considerable, the Government face a very tight timetable imposed by political necessity, the necessity to ratify a very important international agreement involving a Community which is of vital economic importance so far as this country is concerned. This had to be the Government's first priority in deciding how it should deal with the situation created by the Supreme Court judgment. For this reason we decided on the tight [2475] and precise wording we have submitted to the House.

We do not, and the Taoiseach made this clear, ignore the wider issues raised by the judgment. The Taoiseach, in his opening speech in this debate, has offered to have discussions on these wider issues with the Leaders of the political parties represented in the House, either in the context of wider constitutional reform or otherwise.

Thus the Government made two decisions. First they decided to face the immediate issue posed by the Supreme Court's decision. Secondly they decided that the wider issues could be dealt with calmly after the immediate issues which are not important from the national point of view had been resolved. We are quite open about a future approach. We have given priority to ratification of the Single European Act as a matter of immediate urgency from the national point of view. We are prepared to give the priority after that decision by the people to the wider issues, including the implications of the Supreme Court judgment for the efficient conduct of foreign policy when the Single European Act question has been dealt with. We should not try to do better now at the risk of failing in our immediate and urgent task.

Various Deputies have raised the possible wider implications Deputy Barry, Deputy Spring and Deputy O'Malley drew attention to — the effect the Supreme Court judgment would have on existing Treaties. The Government are conscious of these concerns and have proposed a way in which they might be met. Precisely out of a concern for possible further-reaching implications the Government have proposed an approach which will allow for detailed and urgent discussion after the referendum has taken place.

Deputy Kelly in a trenchant intervention today supported the Government's approach as the best one in present circumstances. He also raised questions about the interpretation of the Supreme Court's judgment which need [2476] to be considered as part of the wider consideration the Taoiseach has proposed. It would seem to me that Deputy Kelly has put his finger on the complexities of the wider issue and his comments bear out the advisability and the common-sense of the Government's view that these complexities need to be carefully assessed after the referendum.

It seems to me that the interventions by Opposition Deputies in the past two days have shown how difficult it would be to approach the immediate problem in any way other than with the clearcut option which the Government's amendment presents to the people. Considerations such as our membership of the UN, the GATT, the International Court of Justice and the constitutionality of existing amendments to Community Treaties are just a few of the issues which have already been introduced into the debate.

Deputy McDowell raised even wider questions. The Government believe that their approach offers the people a clear cut choice — whether we continue to develop our membership of the Community, conscious at all times of the need to defend and protect our interests, or whether we withdraw from that process. I am sure that when the people and also the Opposition parties consider the issues involved, they will agree that this is a correct and sane approach to the matter.

As the Taoiseach has pointed out, if we deal with the immediate issues of the Single European Act the House will be able to give the people the guidance which will be seen to have the backing of the representatives of a very large majority of the electorate. Any other debate which might be opened up will cause confusion and will take from the immediate issue which cannot be dealt with within the time scale contemplated. The Government's concern that a wider ranging debate would be damaging and confusing is well founded and has already been borne out by the debate which has taken place in the past two days. We need to avoid the danger of delaying while remaining conscious of the wider issues.

Various Deputies have suggested that [2477] the Crotty judgment will immediately impede the State in the conduct of its foreign relations. There is this implication in the judgment but it does not immediately prevent the State from discharging its obligations except in the vital area of the Single European Act. While it may be useful to speculate on the other consequences — the Government themselves are conscious of these possible consequences — the obligation immediately created by the judgment is to restore our capacity to ratify the Single European Act. That in the practical and immediate objective we propose to put before the people.

The Government have been very careful to note that the Supreme Court decision raised an issue which it was for the Executive and the Legislature to deal with — that is, the ratification of the Single European Act. To speculate on whether the court should have taken a different view is at this stage an academic exercise.

We are faced with the reality of the Act. Further consideration is for the future. At this moment any speculation on further issues is both confusing and academic. It is incumbent on us, as a Government and as an Oireachtas, as the Parliament of the people supporting the Government, to take our responsibilities seriously as a Government and as a Legislature to restore our capacity to ratify the Single European Act via the choice of the people.

As I said at the outset, there have been many weighty and considered contributions to the debate by Deputies from all parties on the question of the scope of the amendment. I have given the Government's reasons for the approach we have adopted. I hope that Deputies opposite will carefully consider what I have said in response. Let us be very clear before we go to the people on what is involved in our approach to ratification of the Single European Act.

Failure to ratify calls into question our participation in the development of the Community. We cannot have it both ways. We cannot opt out of the process and at the same time expect our concerns [2478] and our national interests to be taken into account and acknowledged by the other member states in Europe. It is on that basis that the Government wish to put the question to the people in the clearest possible terms, so that there is full and clear recognition that we are in the European process, that we can only look after our national interests by being involved in the European process and cannot opt out of that process and expect at the same time to maintain, enhance and develop our legitimate national interests.

I have no doubt that those parties opposite who have supported our full participation in the Community, though they may have had other views about it back in 1972, realise that in 1987 we are fully interlocked and involved in a European Community which is an ongoing, developing, organic political Community, basically concerned above all else——

Mr. Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Stick to the script.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  ——with the economic and social progress we feel can be achieved for this country within that Community. I hope all parties here will see the importance of giving the people the opportunity to reaffirm their commitment to membership which was expressed so decisively in 1972 and to Ireland's continued, constructive involvement in the development of the Community. Any other approach will only delay our full participation in what the Commission has described as the process of making a success of the Single European Act. There are vital Irish interests involved in that process, vital interests which will not be served by a complex and confusing debate in the immediate future, echoes of which we have heard in some of the contributions in the past two days.

Thus on this issue of a broad versus a tight amendment I would ask those opposite to think again. I would ask them not to anticipate future court decisions. I would ask them to remember their own very genuine commitment, in many [2479] cases, to the development of the Community and to agree that that commitment is best served by the Government's approach. Finally, I would ask them to remember that the Government are prepared, after the referendum is over, to give considered and priority attention to the wider issues raised by the Supreme Court judgment as it affects our foreign policy — a process in which the Government have invited the other parties to participate.

I should like at this stage to deal with other concerns which have been raised in this debate. The Workers' Party have proposed an amendment which, in effect, calls for renegotiation of the Single European Act. The Taoiseach has already dealt with this issue in his opening speech. Even in December last he and a number of us warned that renegotiation was not possible. Yesterday he pointed out that eleven member states had completed their negotiation and ratification procedures and, as one other member state Denmark, learned, it was not possible to renegotiate the Single European Act. The Government are not prepared to go down the unreal road of renegotiation. That is not now a valid option. Such a course would be fruitless. It would damage both our national reputation and our vital interests. This we are not prepared to do. We are not prepared to breach a solemn undertaking on a major matter given by an Irish Government in Ireland's national interests.

What we are prepared to do, and wished to do in December last, is to reaffirm Ireland's interest in two vital areas in a declaration which we propose to make and lodge at the time of ratification. Protocol 30 attached to the Treaty of Accession of Ireland to the Communities recognises the Community's commitment to Ireland's policy of industrialisation and economic development. On the basis of that, we have received positive Community help over the years. Given the further development of the internal market we feel that this commitment should be reaffirmed and we are determined in the national interests that [2480] it will form part of the Government's negotiating strategy as the Single European Act is being implemented and as the Community works towards the internal market.

It is also opportune to reaffirm that Title III does not affect our long established policy of military neutrality. This is a consideration raised by various speakers, including Deputy Spring. The debate has confirmed the commitment of this House to the policy of neutrality. The Government's declaration takes full account of this fact. I have already explained at length the clearcut approach which we are taking in the amendment we propose. To take the approach proposed by Deputy Spring would, like other suggestions, delay and complicate matters.

Mr. Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  Not so.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  The necessity of a neutrality amendment does not arise given, not least, the commitment which exists in the House to our policy of military neutrality and reflected in the Government's declaration. The Government are not against the inclusion of Deputy Spring's concern in all party discussions we have offered on the wider issues raised by the Supreme Court judgments: that is the appropriate framework for those considerations, so that we can embody in that declaration our reiteration of total commitment to the economic and social cohesion which is required along with the creation of the internal market and the continuing policy of military neutrality to which we have been attached and which is not affected by Title III of the Single European Act.

Deputy De Rossa and others alleged that the Government had reversed their position on the Single European Act since they were in Opposition. I would refute that allegation. Let us think for a moment on what is involved in international negotiation especially at Community level. Any Government must try to get the best deal possible for Ireland. They must establish a balance of advantage, seek the most substantial benefits [2481] and protect our vital interests. The essence of our complaint against the negotiation of the Single European Act is that the previous Government failed to follow the example of other member states in setting out our concerns on economic and social development and the affirmation of our policy of military neutrality. The declaration which we propose to make repairs as far as possible these flaws in our predecessors' negotiating approach.

We had another complaint about the previous Government's approach. I would argue that they tended to downplay the consequences of the internal market for our economy. These consequences were referred to in the interventions by Fianna Fáil speakers in the December debate. They have been taken into account in our declaration in the re-emphasis of the need for a positive approach towards economic and social cohesion involving the transfer of resources to counterbalance any effects from the internal market developments which might affect smaller countries on the periphery of the Community, such as Ireland, who can benefit by an appropriate transfer of resources under the economic and social cohesion concept.

Concerns have been expressed in the House and outside on the dangers which the Single European Act might pose for fundamental rights as enumerated in the Constitution. The Supreme Court considered these concerns when examining the case made by Mr. Crotty and were not convinced by the arguments which he put forward. The Government are satisfied that the fears which have been expressed are unjustified. Furthermore it is publicly acknowledged by the Commission before the European Parliament where it was pointed out that to give the Commission the task of conducting a European human rights policy would exceed the powers of the Community and would require further modification of the Treaties.

There is no proposal to modify the Treaties to give the Community competence on human rights matters. If there ever was to be such a proposal the [2482] Government would obviously be concerned to ensure that the fundamental rights provisions of the Irish Constitution were in no way affected as they are not affected by the Single European Act.

A further issue has been raised which is largely irrelevent to the Single European Act, that is the question of Sellafield. I want to state here and now that ratification of the Single European Act will not, as has been asserted in some quarters, prevent the Government from continuing to urge the closure of Sellafield. In our view it would be a contradiction in terms to maintain that holding on to a time bomb is necessary for one's security; nor can we be asked to approve of the continued operation of installations that we have legitimate reasons to perceive as a menace to our own security. There is no superior court that is given competence to rule under Title III that Sellafield is essential to anyone's security.

I opened my response to this debate by expressing my appreciation of the substantial and thoughtful contributions made by Deputies. I would like to conclude the debate by reminding the House of the importance of the issue before us. The European Community has made a vital economic contribution to this country. We have suffered from the successive recessions of the past 15 years. These were matters outside of the control of the European Community and caused by various distortions in world trade and so on. The consequences have been painful.

However, without our membership of the European Community during that period the situation would have been more serious. There is no doubt that the consequences of our membership and the interlocking of our economic and social systems within the wider Community have cushioned and protected our economy in a very difficult trading period. We must acknowledge the importance of the Community to our economy. It was primarily for reasons relating to growth in the economy that we originally entered the Community. We must acknowledge the importance of the Community, not in a begging bowl approach but in a positive way. During this referendum we should [2483] emphasise its positive benefits to Irish industry, to Irish agriculture and to our social development, to the various training courses which are so important to our young people. All of these positive aspects have involved substantial transfers of resources and we could never have afforded them without our membership of the Community which puts us in a position to benefit from the various financial facilities offered by the Community, and that is without references to the huge market to which we have been opened and which has been the main attraction in bringing industry to Ireland as a location within a wide and expanding market.

We have also found that membership has opened up contact once again with a wider Europe generally and taken us out of the shadow of our nearest neighbour. Our role in Europe has been expanded and we are now able to relate more equally to all of our partners while retaining our capacity to give our own individual interpretation of international issues. These benefits are not quantifiable but are no less tangible for that.

Against this background we will be asking the people on 26 May to reaffirm [2484] our commitment to Europe. We should do this in as clearcut a manner as possible so that the people are fully aware of precisely the issue involved. The people deserve the opportunity to make their decision on the basis of the clearest possible unequivocable and unambiguous question. The Government are determined that they should be able to do so and are also determined that after the referendum the wider questions posed in this debate should be considered and appropriate solutions found. For this reason I ask the House to give a Second Reading to the Bill as introduced.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I am putting the question relating to the Tenth Amendment of the Constitution Bill, 1987, and the Referendum (Amendment) Bill, 1987. The question is that in the case of the motion for the Second Reading of the Tenth Amendment of the Constitution Bill, 1987, the words proposed to be deleted stand part of the question, and in the case of the Referendum (Amendment) Bill, 1987, that the Bill be hereby read a Second Time.

Cuireadh an cheist.

Question put.

Abbott, Henry.
Ahern, Bertie.
Ahern, Dermot.
Ahern, Michael.
Aylward, Liam.
Barnes, Monica.
Barrett, Michael.
Barrett, Seán.
Begley, Michael.
Birmingham, George.
Boland, John.
Boylan, Andrew.
Brady, Gerard.
Brady, Vincent.
Brennan, Matthew.
Brennan, Séamus.
Briscoe, Ben.
Browne, John.
Bruton, Richard.
Burke, Liam.
Burke, Ray. [2485]Farrelly, John V.
Fitzgerald, Liam.
Fitzpatrick, Dermott.
Fitzpatrick, Tom.
Flanagan, Charles.
Flood, Chris.
Flynn, Pádraig.
Foley, Denis.
Gallagher, Denis.
Gallagher, Pat the Cope.
Geoghegan-Quinn, Máire.
Haughey, Charles J.
Hegarty, Paddy.
Higgins, Jim.
Hilliard, Colm Michael.
Hussey, Gemma.
Hyland, Liam.
Jacob, Joe.
Kemmy, Jim.
Kenny, Enda.
Kirk, Séamus.
Kitt, Michael P.
Kitt, Tom.
Lawlor, Liam.
Lenihan, Brian.
Leonard, Jimmy.
Leyden, Terry.
Lynch, Michael.
Lyons, Denis.
McCarthy, Seán.
McCreevy, Charlie.
McGahon, Brendan.
McGinley, Dinny.
MacSharry, Ray.
Byrne, Hugh.
Calleary, Seán.
Collins, Gerard.
Conaghan, Hugh.
Connolly, Ger.
Cosgrave, Michael Joe.
Coughlan, Mary T.
Cowen, Brian.
Crowley, Frank.
Daly, Brendan.
Davern, Noel.
Deasy, Austin.
Dempsey, Noel.
Dennehy, John.
de Valera, Síle.
Doherty, Seán.
Dukes, Alan.
Durkan, Bernard.
Ellis, John.
Fahey, Frank.
Fahey, Jackie. [2486]Mitchell, Gay.
Mooney Mary.
Morley, P. J.
Moynihan, Donal.
Nealon, Ted.
Nolan, M. J.
Noonan, Michael.
(Limerick East).
Noonan, Michael J.
(Limerick West).
O'Brien, Fergus.
O'Dea, William Gerard.
O'Donoghue, John.
O'Hanlon, Rory.
O'Keeffe, Batt.
O'Keeffe, Ned.
O'Kennedy, Michael.
O'Leary, John.
O'Rourke, Mary.
Power, Paddy.
Reynolds, Albert.
Roche, Dick.
Shatter, Alan.
Smith, Michael.
Swift, Brian.
Taylor-Quinn, Madeline.
Treacy, Noel.
Tunney, Jim.
Wallace, Dan.
Walsh, Joe.
Walsh, Seán.
Wilson, John P.
Woods, Michael.
Wright, G.V.

Bell, Michael.
Blaney, Neil Terence.
Clohessy, Peadar.
Colley, Anne.
Cullen, Martin.
De Rossa, Proinsias.
Desmond, Barry.
Gibbons, Martin Patrick.
Gregory, Tony.
Harney, Mary.
Higgins, Michael D.
Howlin, Brendan.
Kavanagh, Liam.
Keating, Michael.
Kennedy, Geraldine.
McCartan, Pat.
McCoy, John S.
Mac Giolla, Tomás.
O'Malley, Desmond J.
O'Malley, Pat.
O'Sullivan, Toddy.
Pattison, Séamus.
Quill, Máirín.
Quinn, Ruairí.
Sherlock, Joe.
Spring, Dick.
Stagg, Emmet.
Taylor, Mervyn.
Wyse, Pearse.

Fáisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.

The Dáil adjourned at 6.20 p.m. until 10.30 a.m. on, Friday, 24 April 1987.


Last Updated: 13/09/2010 23:13:13 First Page Previous Page Page of 4 Next Page Last Page