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Why is the President convening the Council of State?

Q&A: Concerns expressed about Defence Bill which regulates Defence Forces’ representative associations

President Michael D Higgins and his wife Sabina attending the National Day of Commemoration Ceremony at Royal Hospital Kilmainham in Dublin. Photograph: Brian Lawless/PA Wire
Conor Gallagher's picture
Conor Gallagher
Mon Jul 15 2024 - 06:00

On Saturday, President Michael D Higgins announced he is taking the unusual step of convening the Council of State over concerns about the constitutionality of a Bill regulating Defence Forces’ representative associations.

What does the Bill do?

The Defence (Amendment) Bill 2024 contains a number of important provisions regarding the Defence Forces, including for the first time allowing the groups representing enlisted and commissioned personnel to associate with the Irish Congress of Trade Unions on industrial relations matters.

It also established an External Oversight Body for the Defence Forces, which is designed to drive cultural change in the military and increase transparency and accountability.

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Those sound quite uncontroversial. Why has the President convened a Council of State?

For the military representative groups, the main problem lies in Sections 11 and 24 of the Bill, specifically the parts which will ban Defence Forces members from commenting on a political matter “or matter of Government policy”.

Surely it’s only right that soldiers stay out of politics?

Few people disagree there. Members of the Defence Forces have always been prevented under law from commenting on political matters. For the representative associations, the problem with the new Bill is the part which prohibits them from commenting on “Government policy”.

Representatives have called this a gagging order which will prevent them from taking public positions on issues such as pay, working conditions and retention, all of which are currently hot button issues in the military.

What does the Government say?

Tánaiste Micheál Martin has said there is no intention to stifle criticism from military representatives. This has done little to reassure the Representative Association for Commissioned Officers (Raco) which previously accused the Department of Defence of “abusing a dominant position to attack the Defence Forces”.

What are the other controversial parts of the Bill?

Military representatives and opposition politicians have also criticised the make-up of the External Oversight Body as not being sufficiently independent due to the membership of the secretary general of the Department of Defence. Raco has previously said it will not co-operate with the body over this issue.

Do people like any part of this Bill?

One provision, which bans any other organisation from styling itself Óglaigh na hÉireann (the official name of the Defence Forces), seems to have been welcomed in most quarters. It introduces a fine for any person or organisation styling itself as the nation’s military.

What happens now?

The Council of State, which includes the Taoiseach, Tánaiste, Chief Justice, the presidents of the Court of Appeal and the High Court, the Ceann Comhairle, the Cathaoirleach of the Seanad and the Attorney General, will meet on Monday to discuss if the provisions regarding discussions of Government policy are unconstitutional, specifically in relation to freedom of speech protections.

It can then decide to refer the Bill to the Supreme Court for determination, or allow it to proceed to presidential signature as normal.

How unusual is this?

Quite unusual. The Council of State has only been convened to discuss a Bill on 29 occasions since 1940. In 15 of these cases, a decision was taken to refer the Bill to the Supreme Court.