Why has President Higgins convened the Council of State?
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On Monday, the Council of State was convened by President Michael D Higgins to examine the constitutionality of the Defence (Amendment) Bill 2024.
It’s a fairly uncommon practice, with this being just the fourth time President Higgins has done so since he took on the role in 2011.
But what is the process for determining the constitutionality of a law?
The Council of State is a body made up of high-ranking Government officials, former taoisigh and presidents, alongside direct nominees by the sitting President.
The body itself contains representatives from each branch of the Government — the legislature, the executive, and the judiciary. This includes Taoiseach Simon Harris, Tánaiste Micheál Martin, ceann comhairle Seán Ó Fearghaíl, and Seanad cathaoirleach Jerry Buttimer,
While the role of the President is mainly ceremonial, one of their main roles is to sign bills into law once they have passed through both houses of the Oireachtas.
However, the President does have discretion to refer legislation to the Supreme Court — where it can be tested as to whether or not it is constitutional.
Prior to this, they will typically seek advice from the Council of State as to whether or not they believe it to be unconstitutional.
If the bill is found to be constitutional, the President must sign it into law. If the court finds against the Government, the President does not have to sign the bill into law.
The main purpose of the bill is to establish a statutory external oversight body for the Defence Forces, which was one of the key recommendations stemming from the recent Independent Review Group on Dignity and Equality issues within the Defence Forces.
However, the bill does more than this by including Section 11 — which would restrict serving Defence Forces members from speaking out publicly against the Government or on political matters more broadly.
In particular, it restricts serving Defence Forces personnel from doing so while in uniform or if they can be identified as a member of the Defence Forces. It restricts them from attending protests and marches, as well as preventing them from canvassing for politicians or addressing a meeting of a political party.
The two main areas the President has picked out as potentially being unconstitutional are Section 11 and 24.
It is understood that the President may have concerns with Section 11 due to the potential impact on an individual’s right of association.
This gives a person the right to join a union, or a sporting association, under Article 40.6 of the Constitution.
Section 24 deals with prohibiting individuals who have served, either within the Defence Forces or Department of Defence, from being eligible for appointment as the Ombudsman for Defence for five years afterwards.
Not very many. The Council of State itself has been convened to examine whether a piece of legislation is constitutional on 29 different occasions.
However, only 15 of those times was the bill subsequently sent on to the Supreme Court for adjudication.
This is the second time in the last 12 months that it has happened, with President Higgins convening the council in October to consider the Judicial Appointments Commission Bill.