An Bille um an Deichiú Leasú ar an mBunreacht, 1987: An Coiste agus na Céimeanna Deiridh. Tenth Amendment of the Constitution Bill, 1987: Committee and Final Stages.
Saturday, 25 April 1987
Seanad Eireann Debate
An Cathaoirleach: In accordance with  previous practice on Bills to amend the Constitution, it is suggested that consideration of sections 1 and 2 be postponed to allow the Schedule and amendments to be taken first. Is that agreed?
An Cathaoirleach: Amendments Nos, 1, 2, 4, 5, 6 and 7 have been ruled out of order. I am allowing amendments Nos. 2a and 3. Amendment No. 2a is in the name of Senator Ryan and amendment No. 3 is in the name of Senator Ferris. We will discuss them together. Senator Brendan Ryan to move his amendment.
I am simply suggesting that we write into the amended Article of the Constitution words which state that which the Minister has assured us to be the case. The Minister has assured us that there can be no question of us being brought directly or indirectly into a defence alliance or anything moving us towards a defence alliance on the basis of the Single European Act. The Minister has also told us that it will not in any way inhibit our capacity to operate a separate foreign policy. The Minister has been extremely eloquent in telling us that but he has been less than eloquent in explaining how his interpretation can be reconciled with that of the Supreme Court. I now know why a number of our most eminent television interviewers find the Minister such a difficult subject for an interview——
Mr. B. Ryan: ——because of his remarkable capacity to answer any question other than the one the person asking  the question wants him to answer. In many cases that would be regarded as a fine and positive quality but when one is on the other side of a debate like I am on this issue, all I can say is that if the Minister does not want to answer the question, he will have to wait here for a long time tonight because I will make as many efforts as I can to get him to clarify whether the Government accept——
Mr. B. Ryan: Fine, so be it. For the sake of the debate we will have in this country over the next four weeks I would like to know what status the Government attach to the majority decision of the Supreme Court which says that national objectives and ideological positions must defer to the aims and decisions of an institution known as European Political Co-operation. That is not just the wayward opinion of a wayward judge. It is the offical authoritative interpretation by the Supreme Court of what the Single European Act means. The Minister can wax as eloquent as he wishes about the non-issue of defence matters, but Mr. Justice Walsh says that the Treaty impinges on the State's economic, industrial and defence policies. The Minister can wave an out-of-date booklet — and it is a bit foolish to quote that booklet since it contains a considerable number of erroneous interpretations anyway.
Mr. B. Ryan: The Minister has far more experience than I in these matters. Nevertheless I know that in matters like this where there is a lack of clarity of interpretation, ultimately we accept the interpretation of the courts. It is one of the nice things we have developed in parliamentary democracy.
No matter what the Minister may choose to believe is or is not contained in Title III of the Act and no matter what the entire Fianna Fáil Party, Fine Gael or the Progressive Democrats choose to  believe, the truth is that the Supreme Court has said that the Treaty impinges on our defence policies. I would love to be assured that it does not. Because I want to be sure that what I am told by both this Minister and the previous Minister is the case, I am proposing this amendment. It is to ensure that we are not being led by stealth or misapprehension into a position where the first step towards our defence policy is to be conducted in a European light.
I do not say the Single European Act will bring us into a military alliance, but the Supreme Court sees it as an instrument which impinges on our defence policy. If it impinges on our defence policy that means it has an effect on our defence policy. If a treaty impinges on our defence policy it has a defence implication. Maybe I am being simplistic and perhaps the Minister can explain it. If something has a defence implication one cannot say that defence is not an issue. If the Supreme Court had not said that, there would be an interesting argument about this whole issue of security, but the Supreme Court said that it impinges on our defence policy and, therefore, whether it is contained in the Single European Act is not the issue any more. The issue is that the Supreme Court interpreted a section of Title III to mean that the Treaty impinges on our defence policy. Therefore, I have moved my amendment, one part of which states Ireland may not participate in a military alliance.
My amendment simply states the policy which I understand to be the policy of every political party in the Oireachtas, and the great majority of those of us who are not members of political parties subscribe to a similar position. We have two options. We can either insert into the constitutional amendment ratifying the Single European Act a provision which states that we shall not join with any military alliance and that clears up any uncertainty about what the Supreme Court said, or we can leave it out in which case we have to accept that what the Supreme Court said about the Treaty impinging on our defence policy is the  reality and is the official authoritative interpretation of this country.
The first part of my amendment proposes that ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy. The second part relates to other equally specific statements in the Supreme Court judgment. I do not want to reiterate all of what I said on Second Stage. For instance, Mr. Justice Henchy did say that national objectives about ideological positions must defer to the aims and decisions of an institution known as European Political Co-operation. One of the great excuses Members of both Houses use for being careful about things is that they are not lawyers. I am not a lawyer but I have reasonable faith in my rationality and intelligence. I do not think one needs to be a lawyer to understand what Mr. Justice Henchy was saying there. One does not have to agree with him but, to understand what he said, is not something that demands much intelligence, much legal or constitutional knowledge.
He says that national objectives must defer to an institution known as European Political Co-operation. I am assured by the Minister, by Fine Gael and the Progressive Democrats that that is not true. I have this peculiar feeling that the two biggest parties in the Oireachtas are saying it is not true and, even if it is true, we will pretend it is not true, we are going to wish it away, a little like the practice of saying to children: kiss it and it will get better. They do not want to believe it is true, therefore it is not true.
It has been said by Mr. Justice Henchy that we are surrendering our capacity to have an independent foreign policy. That is the interpretation put on Title III of the Single European Act by the Supreme Court. The debate ought to be about whether we are prepared to accept that interpretation and its consequences. That would be a healthy debate in which I would be on one side and many other Members on the other. But I do not think that the majority in these Houses, or in the country, would necessarily go along  with an interpretation which says that, first of all, the Treaty will impinge on our defence policy and, second, that the Treaty must make our national objectives and ideological positions defer to the institution known as European Political Co-operation, which is how the Supreme Court have interpreted it.
All I can say to those who have assured us they will campaign vigorously in favour of this is that they may succeed in avoiding the issue here but there are sufficient people outside these Houses ready and willing to confront them with these issues that they will not succeed in avoiding them for the next four weeks. If they want to say they do not agree with them, or that they do not accept them, then it is their duty to ensure that the constitutional amendment does not allow them to happen by default. If they do agree with them, then it is their duty to tell the people that that is precisely what they are ratifying. But it is not correct, nor is it just or honest to present a constitutional amendment to the people to ratify something, leaving what exactly it means up in the air, uncertain, because apparently the Government cannot make up their minds whether they accept the interpretations of the Supreme Court. The Supreme Court has made it quite clear that the Treaty will impinge on our defence policy and that our capacity to operate an independent foreign policy will be severely restricted. I have always believed that. Many other Members of both this and the other House did not believe it. The truth is, that is what they have said. The simple way to put the interpretation on the Single European Act that most Members who vote in favour of it believe it has, is to write those things into the Constitution. In that way what most Members here believe to be the case can become the case. If they do not, then in my view, what the Supreme Court said will become the case.
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).
Then we go on to the words suggested in our amendment. We submitted that amendment in the knowledge that the Minister himself, in his publicised attitude to the Single European Act and in his response to the Second Stage debate this evening, said that these matters of military alliances and other non-neutral issues are not discussed at all at European Community level. Because of that we see absolutely no reason the Minister will not concede that adding this addendum to Part II of the Schedule would put beyond doubt his commitment, given publicly, that of the Taoiseach and his party, that of the Fine Gael Party, of the Progressive Democrats, indeed that of us all. We are afforded an opportunity here to write it specifically into our Constitution which has been brought into question by the Single European Act.
In the debate on the Single European Act we were of the opinion that it did not contravene the Constitution in any way. Since then we have had a ruling which specifically states — as Mr. Justice Walsh said in his judgment — that Title III impinges inter alia on this country's defence policy. Accepting that to be the case, surely the Government must accept the obligation in this debate to either give a commitment or comment on that assertion. If that were done we would know exactly where we stood and any doubts in the minds of the electorate would be cleared up. As my colleague, Senator Harte said, in laying down the foundations of our party, the oldest in the country, the whole question of neutrality  was always held to be of paramount importance. This is one of the first opportunities we have had to insert a clause by way of constitutional amendment that would put our positive neutrality beyond any shadow of doubt. As far as I am concerned every Member of this House aspires to our policy of neutrality. In formalising all the statements made by our party leaders down through the years, the Labour Party said in 1980 in their booklet entitled “Principles of International Policy, Policy Paper No. 1 — Ireland — a Neutral Nation:”
—national policy within the European Community should ensure that the process of political co-operation does not compromise a neutral Irish position on such matters as armaments, relations with the Third World, and dealing with South Africa;
—active neutrality should imply a total commitment to peace, detente and disarmament, together with a programme of involvement in world affairs in which policy is determined independently in accordance with national needs and on the merits of the individual case.
This is the first opportunity we have had constitutionally, as a political party, to ensure that the public are made aware of the implications of the judgment of the Supreme Court. We are afforded an opportunity, by way of ratification of the Single European Act — which we all conclude to be necessary in the evolution of the Community — to put beyond all doubt forever Ireland's positive neutrality. We want to do so by broadening Part II of the Schedule.
Mrs. Robinson: It seems the two amendments that have been moved seek to attain the same objective which is to clarify the commitment of ratification of the Single European Act in relation to Ireland's non-participation in any military alliance and also the question of being able to pursue an independent foreign policy. I support both those objectives. I am strongly disposed to support the amendments. They have become all the more necessary because of the failure of the Minister to clarify the fundamental questions which I asked him. I am going to ask them again now and perhaps he will address the very clear issues. Like Senator Ryan, I will have to come back on this quite a bit if we do not get answers because it is very fundamental.
In introducing the Bill to the House the Tánaiste said: “I believe then that Title III of the Single European Act poses no difficulties for Ireland's ability to conduct an independent foreign policy”. If that is the case, then I assume the Minister will accept that part of the amendment. He has also made it clear that Ireland does not and will not participate in a military alliance. I assume therefore he will have no difficulty in accepting the first part of Senator Ryan's amendment and the thrust of the Labour amendment. What we seem to be talking about is a sort  of evasive sleight-of-hand. The Minister said: “I believe then that Title III of the Single European Act poses no difficulties for Ireland's ability to conduct an independant foreign policy”, but the judgments of the Supreme Court which have been read into the record of this House more than once make it clear that in the view of the Supreme Court the authorative ruling is that Title III trenches on our foreign policy and impinges on our defence policy. Do the Government reject the Supreme Court's ruling on this? If they do not reject it, how does the Minister reconcile his statements in introducing the Bill to the House with the Supreme Court's ruling? In the light of the Minister's statements I assume he will accept these amendments.
Mr. Robb: In addressing these amendments I might start by asking why should we be so worried about Ireland opting out of defence arrangements which involve the rest of the European community? Let us look at what has happened in this century. Between 1914 and 1918 there were some 150,000 Irishmen fighting for the forces of the Crown. If my memory serves me right, in 1915 130,000 people, 80,000 Catholic Irishmen and 50,000 Protestant Irishmen, were involved in the mud and blood of Flanders. A very high proportion of these people never came back. As everyone knows, 5,000 Ulstermen were killed in the space of 48 hours around 1 July in 1916. During the Second World War about 60,000 Irishmen from the Republic and 30,000 from Northern Ireland participated on the side of the Allies. Certainly the fight against fascism in Europe had a moral tinge about it. Many people on this island, North and South, all volunteers, rose to it. That is one side of the question.
On the other side is a world which now has nuclear weapons and where war, projected to the ultimate, will lead to the total destruction of everyone who shares in the same nuclear cloud. Surely there is a crying need for any area of the world which can contain itself with influence to promote a transformation of attitude  within the human heart — if you like to look at it at an individual level — so that we can be a catalyst for peace-making. I do not believe this is possible once you get involved in alliances, neo-alliances or potential alliances, or difficulties in remaining free from such potential alliances within a great conglomerate of nations in Europe. Therefore it is absolutely essential that if the Single European Act is to be passed into the Irish Constitution and if the implications of it are to carry on into any new Constitution which may be drafted during the phase of the present Government, we must attach these amendments to it. People have said today, and Deputy John Kelly has argued very trenchantly, that our neutrality is a farce. At a certain level it is a farce, a hypocritical farce, a farce——
Mr. Robb: I apologise. I am delighted to receive your guidance. I remember how effective and how useful it was on previous occasions. I will very briefly conclude by saying that what we should be aiming to do is to penetrate with our culture and not with our guns. If this treaty impinges on our defence policy it will be essential that we adopt one of these amendments. If I were to choose between them I would choose as follows. What I do not like about Senator Brendan Ryan's amendment is the absolutism that Ireland may not participate. On the other hand, in regard to the Labour Party's amendment I wonder is there sufficient protection in relation to us belonging to a club in which no one else shares our neutrality position. On balance, in the light of what I have heard today and the doubts which come before our minds when we address ourselves to the Single European Act and, if I may dare say it, a Chathaoirligh, in the light of the less satisfactory replies to certain questions that have been asked, I have to opt for  the amendment as drafted by Senator Brendan Ryan.
Mr. Lenihan: First of all, I again want to refer the House not to the Supreme Court judgments but to a plain reading of Title III of the Single European Act. It is not very difficult reading, it is a little over two pages. There is no reference whatever to any defence or military commitment. There is an exemption from it in Article 30, paragraph 6 (a) which is the only one that even mildly touches on it. It states: “The High Contracting Parties consider that closer co-operation on questions of European security would contribute in an essential way to the development of a European identity in external policy matters”. It also states: “They are ready to co-ordinate their positions more closely on the political and economic aspects of security”. That is similar to what I said in my own words in replying on the Second Stage. Title III, Article 30, paragraph 6 (c) spells out “Nothing in this Title”— you could hardly get it wider than that —“shall impede closer co-operation in the field of security between certain of the High Contracting Parties”— that excludes us; it is designed for the other countries involved —“within the framework of the Western European Union or the Atlantic Alliance”. It cannot be clearer than that. Pargraph 6 (a) covers us in regard to close political co-operation in the field of political and economic aspects of security, and paragraph 6 (c) deals with countries that are members of the Western European Union and the North Atlantic Treaty Organisation. That is all that is in it. I defy anybody to read it paragraph by paragraph, line by line, word for word and find any other reference. That is what it is being sought to amend.
I do not believe in amendments for the sake of amendments, and the Labour Party in particular, having regard to Deputy Spring's remarks in this debate last December, should be rather coy about moving any amendment in this area. I am very proud to belong to the political party that have always adumbrated a policy of neutrality. Article 29  of this Constitution clearly places the power of executive action in the field of foreign policy on the democratically elected Government, and on the Dáil supporting that Government. That is what I believe and that is what the people will be asked to endorse. I am not going to make any comment on my view of what the Supreme Court judges think or do not think. I am here in a political assembly interpreting a political document putting before the House a political amendment to the Constitution which we will ask the people to decide on. All I will say — and I am repeating myself — is thankfully the people will decide the matter we will put to them. I respect their will and their judgment to a far greater degree than any other body in our society.
Mr. B. Ryan: At least we have got to the stage where the Minister says he will not comment on the Supreme Court decision. We now have the Minister for Foreign Affairs of the country I am so proud to be a citizen of who will not comment on a statement by a Supreme Court Judge.
Mr. B. Ryan: The position is that there is a statement by the Supreme Court that national objectives and ideological positions must defer to the aims and decisions of EPC and the Minister will not tell us what the Government think of that. A statement by another judge of the Supreme Court that the treaty impinges on our defence policy——
Mr. B. Ryan: What is the Government's policy given that we now have an authoritative interpretation of the Single European Act? The Minister's position would be both logical and, I think, justifiable if these were the opinions of a couple of barristers or lawyers, however eminent they were. But this is the considered view of the Supreme Court on what the Single European Act means. The point that I, and often I am sure Senator Robinson with greater clarity than I, are simply trying to work out is whether those who assure us that this is not what the Single European Act means, are prepared to confront that and deal with it, or are they, because they cannot handle it and will not handle it, walking us into a position where we are going to subscribe to something that means far more than they are prepared to admit?
My position is well known, I would probably be unhappy with the Single European Act even if the Supreme Court had not said these things. But the Irish people are entitled to know what precisely they are voting on. The Minister says they are voting on a modest change. What the Supreme Court authoritatively has said — and they are the final authoritative interpreters of this treaty — is something entirely different. We will have four weeks when the Minister will not be able, nor will the Government or Fine Gael, to avoid confronting what the Supreme Court said on this issue. One solution is to amend this amendment to incorporate those issues which the Supreme Court had referred to, and which I think everybody in this House believes we should maintain a particular position on. That is the crux of it.
Since the Minister is so eloquent about paragraph 6 (a) of Title III I wonder about the fact that when security is referred to, that is European security, in that paragraph we are assured it refers to political and economic aspects of security, but when we came to paragraph 6 (c) and we are referring to the Atlantic Alliance and the Western European  Union, security either means the economic and political aspects of security or it has a different meaning. The same word is being used in two different paragraphs to mean two different things. This is perhaps why the Supreme Court took the interpretation it did take. The same word “security” is used in paragraph 6 (a) and paragraph 6 (c), in paragraph 6 (a) it means the economic and political aspects of security and in paragraph 6 (c) what does it mean? Does it mean that the Atlantic Alliance will discuss the economic and political aspects of security, or does it perhaps mean that they will discuss security meaning something else? That is just by the way. The Minister may say what he wishes about what this means, but the best opinion I have on what this Treaty and Title III mean is not mine, or any other Member's of this House, or indeed the Minister's or the Government's, but what the Supreme Court has said. The Minister is under no obligation to agree with them but he cannot pretend this did not happen, and over the next four weeks he will not be allowed to pretend it did not happen and they did not say it.
Mr. B. Ryan: Maybe I should call on my colleague from Trinity College who is a lecturer in English to explain the words I am using to the Minister. Of course it happened and it will probably happen again, whatever it is. What I am talking about are the words that the Supreme Court used in order to interpret the meaning of Title III of the Single European Act. I and a far better trained inquisitor than I, Senator Robinson, have so far failed singularly to persuade the Minister to say whether we are actually voting on a Single European Act as interpreted by the Supreme Court on something without an interpretation, which would have been the case if the Supreme Court had not said what they said, but the reality is that they did say certain things, and those things are quite explicit. Does the Minister for Foreign Affairs  accept that national objectives and ideological positions must defer to the EPC? Does he accept that the Treaty impinges on our defence policy?
I would like to know the Minister's and the Government's interpretation of the Single European Act. Do they accept those two interpretations? If they do not, how can they do nothing about it? I am talking about the words the Supreme Court used in order to interpret the meaning of Title III of the Single European Act and a far better trained inquisitor than I, Senator Robinson, has so far failed singularly to persuade the Minister to say whether we are voting on the Single European Act as interpreted by the Supreme Court or on something without an interpretation which would have been the case if the Supreme Court had not said what it did. The reality is that the Court said certain explicit things.
Does the Minister for Foreign Affairs accept that national objectives and ideological positions must defer to the EPC? Does he accept that the Treaty impinges on our defence policy? I should like to know the Minister's and the Government's interpretation of the Single European Act. Do they accept those two interpretations and, if not, why do they not do something about it? I am not a lawyer I do not have to be to read plain English, and the plain English is quite unequivocal here. The Supreme Court said that is the authoritative interpretation of Title III and that is what needs to be addressed but it has not been addressed at all in this debate. That is my reason for moving this amendment.
Mrs. Robinson: This debate is becoming curiouser and curiouser. I listened very carefully to what the Minister said when replying and he is beginning to explain to the House his view of the majority decision of the Supreme Court, not views of judges but the majority decision of the Supreme Court. He has asked the House to disregard it. He said: “Never mind the Supreme Court judgment; here is the text.” We are not in a position to look at the text. We have  an authoritative ruling of the Supreme Court on that text.
Mrs. Robinson: I appreciate that he is asking me to read the text and I am equally asking the Minister to give a simple answer to this question. What is the status of the majority decision of the Supreme Court on Title III of the Single European Act as far as the Government are concerned? Does the Minister accept the ruling of the Supreme Court?
Mrs. Robinson: The Minister is inaugurating the referendum process by introducing the Bill, using language which is not reconciliable with what the Supreme Court said, and saying to the country that there is no impediment whatsoever, that Title III of the Single European Act poses no difficulty for Ireland's ability to conduct an independent foreign policy and so on.
I am very concerned that the Minister in his responses to this debate has got himself on a totally illogical, totally unjustifiable hook. He does not agree with the interpretation of the Supreme Court. He wants his view of the Single European Act to be the authoritative  view and he wants that view accepted simpliciter. The concern of the proposers of the amendments is to ensure that the Single European Act will mean and will be interpreted in Ireland to mean what the Minister is saying in his speech, not what the Supreme Court is saying. I cannot understand why the Minister is not prepared — indeed he has not made his position clear on the amendments — to accept both amendments because they are quite in conformity with what he said. They are not in conformity with the majority judgments of the Supreme Court on the Single European Act. Certainly the second part of Senator Brendan Ryan's amendment is not in conformity and the thrust of the Labour Party amendment is not in conformity with the Supreme Court's interpretation. This is a fundamental issue.
It will cause enormous confusion throughout the country if the Government try to run the referendum campaign on their interpretation of the Single European Act and in clear defiance of what the Supreme Court said. The Government may not like what the Supreme Court said but we do have organs of State. We have a relationship between the Executive and the Judiciary and when the Supreme Court hands down an authoritative ruling I understand it is binding on the Government and the authoritative view. That being so, we now have the problem posed by the Supreme Court judgments which is that the Supreme Court, contrary to my view which I published beforehand, has authoritatively said that the Single European Act trenches upon our foreign policy, that we would not have an independent capacity, we would be impinged upon and so on.
The Government have to be honest about this. They either have to run the referendum campaign saying that will be the position and what they accept as being the price of ratifying the Single European Act, or they should accept the amendments and bring the manner of ratification of the Single European Act into line with what the Minister is saying in the House. The Minister cannot have it both ways. He cannot come to the House  and say that the Single European Act means “X” when the Supreme Court has said, no, it does not mean “X”, it means “Y”.
Mr. Ferris: We have had an excellent debate today on an important issue to be put to the people but I am surprised at the attitude adopted by the Minister. We are endeavouring to remove some of the ambiguity in the question being put to the people. I resent the Minister quoting his predecessor, the Tánaiste in the former Government, who was responsible for putting the Single European Act through this House. The Minister is expressing similar views today and his predecessor said that the legal advice available to him was that Title III did not pose any difficulties or problems for us. At the same time he confirmed that as there was a doubt, certainly in the minds of a number of Labour Party Members at national executive and parliamentary party level, there should be a constitutional referendum, to include the question of our neutrality, to put the matter beyond doubt. The Minister's predecessor was consistent in this regard and I resent the Minister pointing his finger across at us and saying: “How dare you move any amendments in this area”?
It is our constitutional right to move amendments if we consider them necessary arising out of the Supreme Court decision, irrespective of the Minister's feelings. It is because of the Supreme Court's decision which questioned the right of the Houses of the Oireachtas to pass legislation like the Single European Act that we now must put the issue to the people. Instead of being a constitutional amendment, it is almost an insult to the Constitution which the Minister held up so proudly saying it conformed to all his ideals.
The Government are now proposing to put forward a narrow amendment to the Constitution to change the position in regard to the Single European Act to make it convenient for them. The amendment is being made because the Supreme Court decided that we stepped outside  our constitutional position as legislators. The Labour Party have been consistent on this issue. The party leader, Deputy Spring, has been consistent and I resent you referring to him in his absence.
Mr. Ferris: You should have reprimanded the Minister when he was waving his hand at everybody except you. May I wave my hand at the Minister and tell him that if he has any comments to make about the Labour Party, he should address them to me because I represent the party here and expound their views as passed by conference? This is the first opportunity our party have had to put neutrality positively into our Constitution. We are trying to be helpful and constructive. I will not be dissuaded by the Minister who will not answer us. No one wants to sit here all night but we will if that is what is needed to get the proper response from the Minister to a responsible debate on the Bill. It would not be the first time we had an all night sitting of the Seanad. The Minister may have a short memory but I do not.
Mr. B. Ryan: May I try once more? There are more Members in the House than Senator Robinson, Senator Ferris, the Minister and myself. There are 15 Fianna Fáil Members and if Senator Robinson and I cannot get a view from the Minister for Foreign Affairs on what they will be asked to support in the House and campaign in favour of I warn them that the people will wave these interpretations and the Supreme Court judgments at them and say: “This is what the Supreme Court said about the Single European Act; how can you tell us it is a modest change?”
It is going to be said to every one of us all around the country during the referendum campaign that this is what it means and how can we say it means  nothing. I say to them that in their own self-interest, if for no other reason, they ought to find out what it means and what is the official Government position. If they are going to be sent out to knock on doors, make speeches and argue with people, they ought at least to expect to be told what precisely it is they are canvassing in favour of by those who are going to expect them to do that work. As of now, they do not know because the Single European Act as an Act on its own is no longer the issue. The issue is the Single European Act as interpreted by the Supreme Court. You cannot pick the Single European Act on its own and say that is what you are voting on.
Mr. B. Ryan: The reason we are having a referendum is because of the judgment of the Supreme Court. Part of that judgment is what they wrote down and said about the Single European Act. The Minister may wish to avoid that. It may be difficult and uncomfortable for Fianna Fáil particularly given their record on these issues and their commitment to this country as an independent entity. It may be very difficult for them. It may well be difficult for other people but that does not justify them avoiding the issue. The truth of the matter is that according to the Supreme Court this is not a modest change; it is a fundamental change and transformation. This is going to come up over and over again. I invite the members of Fianna Fáil, many of whom I know well, to endeavour to find out what Senator Robinson and I apparently are going to fail to find out and that is what the Government actually believe the Single European Act now means. You  cannot suddenly produce it out of thin air and say that because you do not like what the Supreme Court said it does not count. It counts and it counts far more than anything I or the Minister will say. What counts now is the authoritative interpretation of the Act as formulated by the Supreme Court. It may not be nice or pleasant but it is still true.
We are not talking about individual judges. As Senator Robinson said with far greater authority than I, we are talking about the decision of the Supreme Court on the Single European Act and the judgment they issued. That is not some sort of an opinion to be dismissed because you do not like it. It is the judgment of the Supreme Court. We are getting close to a position where we are now being told that because we do not like what the Supreme Court says we are going to try to pretend it never happened. That is both an unhealthy way to conduct our political affairs and it is also a very unhealthy way to deal with the supreme legal institution of the State. It does not show a proper respect for the Supreme Court. One would get the impression indeed that the Supreme Court was a fine idea as long as it made interpretations or judgments that suited the political establishment. They have now made one which does not suit them and the decision has been not to deal with the issues, not to deal with the problems, but to ignore them and hope they will go away.
I can assure this House and the Minister, again, that whatever the outcome of the referendum these issues will not go away. They will be talked about, discussed and made known to the people to the best of my and many other people's resources over the next four weeks. Somewhere along the way sooner or later every single member of Fianna Fáil and of Fine Gael here are going to have to face up to the single issue, namely, what does the Single European Act mean and what does Title III mean? The best interpretation we have is the one given to us by the Supreme Court. The more people know about that the less they will like it.
Mrs. Robinson: I would like to come at it another way. I would like to ask the Minister if he could clarify for the House whether he accepts the principle in Part I of Senator Ryan's amendment that Ireland may not participate in any military alliance and that ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy? Is it the position that he accepts both those propositions but that they are unnecessary and redundant because nothing in the Single European Act would affect them? Is it the Minister's view that ratification of the Single European Act does not prevent the State from pursuing an independent foreign policy? Is that the position?
Mr. Lenihan: It does not inhibit us in any way. I fall back on Article 29 of the Constitution, first of all, which states very clearly that the executive power of the State in connection with its external relations shall in accordance with that Article of the Constitution be exercised by or on the authority of the Government. For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government, to such extent and subject to such conditions, if any, as may be determined by law, may avail or adopt any organ, instrument or method of procedure used or adopted for the like purpose by the member of any group or league of nations with which the State is or becomes associated with for the purpose of international co-operation in matters of common concern. The Article goes on to state that every such agreement entered into by the State should be  laid before Dáil Éireann. I consider that Article has some primacy.
In addition to that Article, we have written in the European Communities treaty passed by the people in 1972 and we propose now to write in the Single European Act. That is where I believe the power and authority in the exercise of foreign relations on behalf of this State lies. It is a combination of the powers vested in the democratic Government by Article 29 subject to the approval of the Dáil and, where necessary, by reason of a court decision, as in this instance or in any other case where necessary, referred to the people and passed by the people in which event such Act — as in the case of the Single European Act — will be added to that section and the State, through the Government, will duly ratify that particular Act. That is plain language. I stand by that and I will not be drawn any further.
Mrs. Robinson: We cannot quote either Article 29 or the Single European Act without referring to the interpretation of Article 29 and the interpretation of the Single European Act given by the Supreme Court. We are bound by that. The Minister is bound by that. That is the view. I think we are making progress because the Minister has made it clear in response to the questions which I put to him that he accepts both parts of what is in this amendment. He accepts that Ireland may not participate in any military alliance and he accepts that ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy. I presume that that being the Minister's view, it is also the Government's view.
It is very necessary to have that view incorporated in the text of the Bill to be put to the people by way of adoption of  these amendments because that is not what the Supreme Court has said. I am not referring to the question of participation in any military alliance. It is my view that the judgment of the Supreme Court makes it clear that Ireland may not participate in any military alliance without a constitutional amendment to enable it to participate. Certainly, the majority judgment of the Supreme Court would conflict with the second part of Senator Ryan's amendment. It would conflict with the proposition there that ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy. The fact that the people endorse the Single European Act does not change the substance of the Single European Act. The fact that the people say “yes” to the Single European Act does not change the substance of it.
What is the substance of it? It is not a question of us waving the blue book or Article 29. We have a way of determining authoritatively what the substance of it is. We have gone through that process and the Supreme Court laid down what the Single European Act means for the purposes of this country. It is interesting because it is an Irish final court adjudicating upon the Single European Act. It is possible that a French court, or some other court, might give a different interpretation. It is possible that the European Community court might give a different interpretation but the interpretation by the Irish Supreme Court is an authoritative interpretation for the purposes of this country. It is not an interpretation which is reconcilable with part 2 of Senator Ryan's amendment. The Supreme Court has not found that the Single European Act would not inhibit the State from pursuing an independent foreign policy. It has found that the Single European Act trenches upon our foreign policy, impinges on us in the exercise of our foreign policy.
The fact that the people vote yea or nay does not change that substance. Getting “yes” from people will not change that but when the people come to make the  decision on whether they are going to vote “yes” or “no” they are entitled to know what they are voting on. Either they must vote on the Supreme Court's interpretation or they must vote on the Government's proposal which would, in fact, change the substance. As I read Senator Ryan's and the Labour Party's amendments, by having the qualifications they have, they are ensuring that notwithstanding the Supreme Court judgments the Single European Act will not inhibit the State from pursuing an independent foreign policy.
The Minister is in full accord with that objective but he has got himself on a complete hook; he has got himself in a completely illogical position. The Minister cannot maintain his personal opinion or his ministerial opinion in the face of the authoritative ruling of the Supreme Court. I do not think he is constitutionally entitled to do that in the House.
Mrs. Robinson: The balance of play between the Executive and the Judiciary would be, and has always been, that where the Supreme Court has given an authoritative ruling — it may be criticised because this is a democracy — it is certainly open to having a constitutional amendment to change a position, as has happened more than once. Where the Oireachtas and the Government disagreed with a judgment of the Supreme Court we have had an amendment subsequent to that but the Minister is trying to somehow ignore the fact that we have the authoritative ruling of the Supreme Court.
Mrs. Robinson: This is not a lot of nonsense. We are clearly identifying a problem in relation to the commencement of the referendum process on  the Single European Act. It is extremely important and the House, which has come in for a lot of criticism, is performing a service in that it is identifying a very important problem. It is necessary that the Minister clarifies for Members, and by doing so helps to clarify for the country, how he can maintain support for the objectives of the amendment before us and yet fail to accept the amendment. Perhaps the Minister will explain that?
Mrs. Robinson: It is not. I am not going to get annoyed at the Minister's attempt to flannel this. It would not be the first time the Minister had some reputation for flannelling. I must put the question to the Minister again. He has said he accepts fully the qualifications in the amendment, he accepts that Ireland may not participate in any military alliance and he accepts that the ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy. That will not be achieved by the referendum without adopting these amendments because the ruling of the Supreme Court is that the Single European Act trenches upon and impinges on our exercise of an independent foreign policy. The House is entitled to clarification from the Minister as to why, although he accepts the principles of the two proponents of the amendment, he will not accept the amount and the similar thrust of the Labour Party amendment.
An Cathaoirleach: I should like the assistance of the House on this matter. I accept that the amendment is serious from the Senator's point of view and I understand the Minister's point of view but we have has quite a lot of repetition in the debate. I would prefer if the Senator stood when he is addressing the Chair and the sooner he sits again the happier I will be. We have spent almost one hour on this matter and both sides understand where they stand.
Mr. B. Ryan: I want to ask the Chair for assistance. I take this House extremely seriously perhaps because it is the only House I will ever be in, but it is the first time in my experience that I, or Senator Robinson in the period I have been in the Seanad with her, have had a Minister refuse to take any further part in a debate because he did not like what we were saying. The Minister is entitled to disagree with us. He is not entitled, because he cannot or will not take issue with the points we raise, to descend to personal abuse as he did in the case of Senator Robinson or, indeed, to start throwing in words like “nonsense” and so on. I am not engaged in nonsense and it is not my intention at 10.15 p.m. on a Saturday night to engage in nonsense. I am engaged in the very serious exercise of trying to find out whether our Government take the Supreme Court seriously or whether they choose to ignore it when they do not like what it says. The Minister's continued reiterated position is that he will not say.
I would like the Chair to consider  whether the Minister has the right when he is participating in a debate in the House to say that he will not answer and that, furthermore, he will not participate in the debate any more. I do not have the right to walk off in a huff because I do not like what people are saying to me; at least I hope I would not whether I had the right to do so or not. I regret very much the fact that the Minister seems to be taking offence at the fact that we will not let him get away with what seems to me to be extremely woolly reasoning on this issue.
Mr. Lenihan: I never take offence at nonsense and I am not taking offence but I am certainly not going to be lured by questions such as, do I take the Supreme Court seriously. That is the sort of question one asks a child.
Mr. Ferris: I should like to be of assistance to the Chair. I should like to remind the Minister that on Second Stage this morning in referring to the decision of the Supreme Court which created this constitutional issue for us he said:
A constitutional distinction has, of course, been drawn in the Supreme Court between informal commitments and Treaty-based commitments. That is in large part why we are putting this constitutional amendment to the people. But in doing so I wish to emphasise that there is nothing in Title III which will oblige Ireland to conform to any foreign policy position with which it is not in agreement. Our obligations under the Single Act will remain limited essentially to working for common positions and joint action.
That is the Minister's view and I take it it is the Government's view because that is what the Minister says here. We were trying to assist him in our amendment by writing that in as an addendum. I want to be careful now as I want to be kind to you, a Chathaoirligh, because you have a difficult task.
We are giving the Minister in this addendum the right to seek from the people the power for the State to ratify the Single European Act as signed in Luxembourg and in the Hague, and seeking to provide that such ratification would not diminish Ireland's adherence to an independent foreign policy outside membership of any military alliance. That is what the Minister said in his speech. He agrees with this amendment. Why then will he not agree to accept these amendments?
Will he at least rise to his feet and say that he will not accept them? Then we can have a vote on whether he will accept them and he can carry the vote, but let him not sit down, whether he is in a huff or not, and ignore them. He stood up  and made a contribution. I asked him a question. I have quoted what he said in his speech and I am assisting him by putting an amendment down to the Schedule which concurs with what he has said. Does he accept my assistance in this? Does he think it is unnecessary?
Mr. Ferris: I have not finished. Does the Minister think it necessary? Senator Robinson asked that question. Does he honestly think that all things are unnecessary? If that is his view he has not had regard to what the Supreme Court decided. I am not a lawyer. The Minister is a solicitor and Senator Robinson is a lawyer. I am a layman and I want to know what the people are to be told.
Mr. Lenihan: I agree with Mr. Justice Walsh when he said, and I quote from his judgment, “The consent of the people is a necessary pre-requisite to the ratification of Title III to the SEA”. He was concerned about having a referendum to decide the issue, and the issue arises from what is in the Single European Act. I have given fully the Government's interpretation of the Single European Act. I do not think the amendments before the House are necessary in any way to incorporate in or add as an addendum to our simple, straightforward amendment of the Constitution which the people will consider, which is simply whether they agree to the ratification of the Single European Act.
As Mr. Justice Walsh stated rightly, it cannot be ratified without reference to the people. He said that in the course of the judgment to which the Senator referred. I regard any other amendment at this stage as unnecessary, superfluous and redundant, and I am asking the House to reject the amendments. I said that an hour ago in language that was plain enough if the Senator was listening to me.
Mrs. Robinson: That passage from the judgment of Mr. Justice Walsh, with which nobody would disagree, explains  that in the context of the Single European Act impinging on the exercise of an independent foreign policy in effect, the consent of the people in a referendum would be required to ratify the Single European Act. The people would have to endorse Ireland participating for it to be ratified. What are the people being asked to endorse in the text of this Bill when it provides that Ireland may ratify the Single European Act?
The Government had at least two courses open to them in the text of this measure and how they would put it forward. One would be to say that the people are being asked to ratify the Single European Act which it is clear from the authoritive judgment of the Supreme Court means what the Supreme Court says it means. This is the bullet we have to bite. This is the price. This is what it is about. That is a perfectly valid viewpoint. It is perfectly clear that this was an approach open to the Government. The Government could accept the amendments and ensure that the people were being asked to endorse the Single European Act qualified by the two provisions in the amendments, that Ireland shall not be participating in any military alliance and the ratification of the Single European Act shall not be deemed to inhibit the State from pursuing an independent foreign policy. That would be to ensure that the people were being asked to ratify the Single European Act as meaning, and as being qualified by that meaning, what the Minister says in his and the Government's opinion the Single European Act means.
The Minister has chosen a third course — to run in a sort of illogical tandem with himself. He is putting the Single European Act as meaning what the Government say he means and at this stage perhaps we need my colleague, Senator Norris. “Words mean what I say they mean. The SEA means what I say it means. Do not pay any attention to our final court or to the judgment of the Supreme Court”. That is not going to help the referendum or get it off to a great start. It will lead to considerable, unnecessary confusion. I do not think we  are wasting our time here or stringing it out unnecessarily or repeating ourselves, but we have not got satisfactory answers.
Mr. Norris: Since I have been mentioned I may say that I have listened to this discussion with great interest, and I believe that my distinguished colleagues in front of me here have raised a real problem, a real dilemma which I am not sure has been cured by the statement of the Minister for Foreign Affairs, Deputy Lenihan, this morning. Let me amplify this slightly.
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.
If I apply common sense to that — I say this with the greatest respect for the Supreme Court — my interpretation of that would not be the interpretation placed on it by Mr. Justice Walsh, and that is my difficulty. The view in the Supreme Court with which I agree is that of the two dissenting judges because it seems to make common sense that that paragraph means that the countries which have an allegiance to NATO or the Western European Union can go off and do their own thing without affecting us. That seems to me to be the common sense interpretation.
I agree with the Minister, Deputy Lenihan, on this but it seems that, authoritatively speaking — and this is the substantive point of my friends here — we are wrong. The definitive judgment is where Mr. Justice Walsh says that one interpretation of the paragraph I have just quoted is that the member states  which are members of the Western European Union or the Atlantic Alliance can develop their own co-operation in those fields without being impeded by anything in Title III of the Treaty. However, it is also capable of another and now legally definitive interpretation. It can also amount to an undertaking on the part of this State that in the exercise of whatever powers it may have under Title III it shall do nothing to impede such co-operation in the field of security in the framework of the Western European Union or the Atlantic Alliance, on the part of those member states which belong to those institutions. That seems to be a very different interpretation to the commonsense one which is apparently not the correct legal interpretation. If one takes a phrase like “it shall do nothing to impede such co-operation in the field of security in the framework of the Western European Union” that comes perilously close to indicating that the state must collaborate with those military alliances. This places in considerable jeopardy the statement of the Minister this morning, which I took at face value, that there is nothing in Title III which obliges Ireland to act in a way incompatible with its politics of neutrality. That seemed to be the position until this matter was clarified by my learned colleagues. Now it no longer seems to be the position.
Friel, Brian. O'Shea, Brian.
Robb, John D.A.
Norris, David. Robinson, Mary T.W.
|Bohan, Edward Joseph.
Haughey, Seán F.
O'Toole, Martin J.
Tellers: Tá, Senators B. Ryan and Robinson; Níl, Senators W. Ryan and Haughey.
Fáisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
An Cathaoirleach: Amendment No. 3 was discussed with amendment No. 2a. Is amendment No. 3 in the name of Senator Ferris withdrawn?
Mr. Ferris: No. Tairgim leasú a 3:
I gCuid I, leathanach 5, líne 28, i ndiaidh “do dhaingniú”, an méid seo a leanas a chur isteach:
“agus ní laghdóchaidh an daingniú san taobhú na hÉireann le beartas eachtrach neamh-spleadhach gan bheith ina comhalta d'aon chomhghuaillíocht mhíleata.”,
i gCuid II, leathanach 7, líne 5, i ndiaidh “February, 1986)”, an méid seo a leanas a chur isteach:
“and such ratification shall not diminish the adherence of Ireland to an independent foreign policy outside membership of any military alliance.”.
I move amendment No. 3:
3. In Part I, page 4, line 28, after “do dhaingniú”, to insert the following:
“agus ní laghdóchaidh an daingniú san taobhú na hÉireann le beartas eachtrach neamh-spleadhach gan bheith ina comhalta d'aon chomhghuaillíocht mhíleata.”,
in Part II, page 6, line 5, after “February 1986)”, to insert the following:
“and such ratification shall not diminish the adherence of Ireland to an independent foreign policy outside membership of any military alliance.”.
Cuireadh an leasú.
Rinne an Seanad votáil.
 The Seanad divided, Tá, 9; Níl, 38.
Robb, John D.A.
Robinson, Mary T.W.
|Bohan, Edward Jospeh.
Haughey, Seán F.
O'Toole, Martin J.
Tellers: Tá, Senators Harte and O'Shea; Níl, Senators W. Ryan and Haughey.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Cuireadh agus aontaíodh an cheist: “Gurb é an Sceideal an Sceideal a ghabhann leis an mBille”.
Question: “That the Schedule be the Schedule to the Bill”, put and agreed to.
Níor tairgeach leasú a 1 agus a 2.
Amendments Nos. 1 and 2 not moved.
Aontaíodh Alt 1.
Section 1 agreed to.
Aontaíodh Alt 2.
Section 2 agreed to.
Cuireadh agus aontaíodh an cheist: “Gurb é an Réamhrá an Réamhrá a ghabhann leis an mBille”.
Question: “That the Preamble be the Preamble to the Bill”, put and agreed to.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasú agus glacadh é chun an breithniú deiridh a dhéanamh air.
Bill reported without amendment and received for final consideration.
 Tairgeadh an cheist: “Go rithfear an Bille anois”.
Question put: “That the Bill do now pass”.
Mr. B. Ryan: I am allowed at this stage to speak on the contents of the Bill and no more. I want to say to the people who voted here in such extraordinary large numbers that while the civilised procedures of this House may enable them to avoid the issues contained in this Bill, particularly in the light of the Supreme Court judgment, the referendum campaign will not allow them to avoid the issues. Whether they do so publicly or privately they will find out whether or not the side they take in this referendum includes supporting the interpretations of the Act which have been given to us by the judgment of the Supreme Court. They will find that many people, young people in particular, are much better informed about this matter than, it would appear, many Members of this House are, given their suppliance to a most extraordinary position by the Government. Therefore, I do not propose, as I was tempted, to call a vote on the Final Stage. It is late and the Members of this House are entitled to some indulgence from the likes of me. I want to reiterate my opposition to this amendment of the Constitution. It is unnecessary and we could do without what is contained in it. We could and should renegotiate the Single European Act.
Cuireadh agus aontaíodh an cheist.
Question put and agreed to.
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