Council of State (Ireland)

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The Council of State (Irish : an Chomhairle Stáit [1] ) is a body established by the Constitution of Ireland to advise the President of Ireland in the exercise of many of their discretionary, reserve powers. [2] It also has authority to provide for the temporary exercise of the duties of the president if these cannot be exercised by either the president or the Presidential Commission [3] (an eventuality that is very unlikely to occur, since it would require the simultaneous absence of the President and two members of the three-member Commission). [4]

Contents

Members

The Council of State consists of a number of government officials, who sit ex officio , as well as certain former office holders and up to seven individuals of the president's own choosing. The ex officio members comprise the attorney general as well as individuals from each of three branches of government: legislature, executive and judiciary. [5]

Unlike most of the president's other duties, which must be conducted in accordance with the advice of the cabinet, the seven presidential appointees to the Council of State are chosen at the president's absolute discretion. [6] These appointees retain their positions until the president's successor takes office. [7]

ClassOfficeCurrent members
Ex officio: executive Taoiseach Leo Varadkar
Tánaiste Micheál Martin
Ex officio: legislature Ceann Comhairle Seán Ó Fearghaíl
Cathaoirleach Jerry Buttimer
Ex officio: judiciary Chief Justice Donal O'Donnell
President of the Court of Appeal [8] George Birmingham
President of the High Court David Barniville
Ex officio Attorney General Rossa Fanning
Former officeholders President Mary Robinson, Mary McAleese
Taoiseach John Bruton, Bertie Ahern, Brian Cowen, Enda Kenny, Micheál Martin
Chief Justice Ronan Keane, Susan Denham, Frank Clarke
President of the Executive Council of the Irish Free State None [fn 1]
President's nominees(List of former nominees) Cara Augustenborg, Sinéad Burke, Sindy Joyce, Maurice Malone, Johnston McMaster, Mary Murphy, Seán Ó Cuirreáin  [ ga ] [10]
  1. The office of President of the Executive Council was superseded in 1937 by that of Taoiseach; both former Presidents are dead. The 1996 Constitution Review Group proposed removing, as obsolete, mention of the office in relation to the Council of State. [9]

The Constitution explicitly states that members appointed by the President may resign, [11] or be dismissed by the President. [12] Former office holders are members if "able and willing to act as a member", [13] which implies an ability to resign; but there is no provision for dismissing them. When the McCracken Tribunal found in 1997 that former Taoiseach Charles Haughey had misled the Tribunal, there were calls for him to formally resign from the Council of State. [14] [15] He did not do so, although he sent his regrets to subsequent meetings of the council until his death. [14] [16]

Members of the Council of State may be excused from jury duty. [17]

The Constitution specifies a declaration of office, "in the presence of Almighty God", which a new member must take before attending an official meeting. [18] Tánaiste Éamon Gilmore, a declared agnostic, sought legal advice before attending the 2013 Council meeting. [19] The 1996 Constitutional Review Group recommended making the religious part optional. [9]

Role

Before exercising any reserve power but one, the President is required to seek the advice of the Council of State, although not required to follow its advice. The one exception, where the President has "absolute discretion", [20] is in deciding to refuse a dissolution to a Taoiseach who has lost the confidence of the Dáil. The remaining discretionary powers, which do require prior consultation with the Council of State, are as follows (for a detailed description of the president's reserve powers see: President of Ireland#Discretionary powers):

The draft of the Constitution gave more powers to the Council of State. Article 13 allows additional powers to be given to the President acting on the advice of the Government; originally, it was the advice of the Council of State that was to be required. [28] Article 14 provides for a Presidential Commission as the collective vice-presidency of the state when the President is absent; originally the Council of State was to fill this function. [28] Nevertheless, under Article 14.4 of the constitution the Council of State, acting by a majority of its members, has authority to "make such provision as to them may seem meet" for the exercise of the duties of the president in any contingency the constitution does not foresee. [3] This provision has never been invoked.

The Third Amendment of the Constitution Bill, 1958, which was defeated at a referendum, gave a role for the Council of State in the work of an envisaged constituency boundary commission.

Close to the time of its inception, the Council of State was likened to a privy council, [29] [30] although Jim Duffy calls this "more apparent than real" as it has no legislative or judicial functions. [28] Gemma Hussey, who was a member of the Council of State in 1989–90, described it as "largely a symbolic body". [31] Actress Siobhán McKenna, appointed to the council by Patrick Hillery, suggested in the 1980s that the Council approach Ronald Reagan regarding the Troubles in Northern Ireland; Hillery's secretary remarked there was "no point in trying to explain" to McKenna that the council had no role in such matters. [32]

Meetings

Working meetings called by the President for consultation under the terms of the Constitution are rare, though less so since the election of Mary Robinson in 1990. Four meetings have related to an address the Oireachtas, which requires the approval of the Government as well as the consultation of the Council of State. All other meetings have been to advise the President about whether to refer a bill to the Supreme Court. [33]

Meetings are held in Áras an Uachtaráin. [14] Members arrive 15 minutes before the meeting starts, and are served light refreshments in the Council of State Room. [14] At the first meeting of the Council in Mary McAleese's first term, there was a photocall in the State Reception Rooms. [14] The council's deliberations are held in camera, [14] as for cabinet meetings, though there is no explicit requirement for confidentiality. The Irish Times obtained details of a 1984 meeting from an unnamed attendee, [34] while James Dooge discussed a 1976 meeting years later with journalist Stephen Collins. [35] A 2019 legal request for records of 1999 and 2002 council meetings was rejected by the Supreme Court in 2022 on the grounds that the President's constitutional immunity from judicial scrutiny extended to the Council of State. [36] Members are seated in order of precedence in the Presidents' Room around a 1927 dining table purchased by President de Valera in 1961. [14] The Secretary-General to the President serves as clerk to the council. [37] The Council does not offer collective advice; the President asks each member in turn to comment, and further discussion may involve several members. [28]

Apart from the Council of State's official meetings, its members are invited to important state functions, such as state funerals, the National Day of Commemoration, and the inauguration of the next President. The first President, Douglas Hyde, dined monthly with the members of his Council of State. [38] The seven new presidential nominees of Mary McAleese's second term were introduced at a luncheon in the Áras the month after their appointment. [39] Campaigning in the 1990 presidential election, Mary Robinson promised to have meetings of the Council regularly rather than on "an emergency basis". [40]

Addresses to the Oireachtas

Date of meeting [33] PresidentTopic of AddressDate of Address (link to text)Notes
20 December 1968 [41] Éamon de Valera 50th anniversary of the First Dáil 21 January 1969 Brendan Corish was the only absentee from the Council of State meeting. [42]
29 June 1992 Mary Robinson "the Irish Identity in Europe" [43] 8 July 1992
24 January 1995 Mary Robinson "Cherishing the Irish Diaspora" 2 February 1995
28 October 1999 Mary McAleese Marking the millennium [44] 16 December 1999 Charles Haughey, Albert Reynolds, and Mary Robinson were absent. [14]

Referring of bills

In some cases, the President has decided to sign the bill (thereby enacting it) without referring it to the Supreme Court; in other cases, the President has referred the bill (or sections of it) and the court has upheld its constitutionality; and in other cases the Court has found some or all of the referred portions to be unconstitutional. It is not revealed whether some or all members of the Council of State counselled for or against the President's course of action.

Jim Duffy in 1991 criticised the lack of supporting resources for members of the council; at meetings they were provided only with a copy of the Constitution. [28] By contrast, prior to the 2013 meeting to discuss the Protection of Life During Pregnancy Bill, a dossier of background information was sent to each member, including legal briefs and news reports. [45]

Although the serving Chief Justice is a member of the council, by convention they do not get involved in substantive discussions on the bill, as they will be involved in the deliberations if the bill does get referred. [35] [45] Therefore, retired Chief Justices and the President of the High Court play a greater role in the discussion. [35] [45] The 2013 meeting was the first at which two serving members of the Supreme Court were present, as John Murray is an ex-Chief Justice but was then an ordinary member of the Court, the first such since the term of the Chief Justice was limited to seven years in 1997. [35] [46]

Date of meeting [33] Bill (section)PresidentOutcomeNotes
8 January 1940 Offences against the State (Amendment) Bill, 1940 Douglas Hyde Referred and upheld [47] [48] See Offences against the State Acts 1939–1998. W. T. Cosgrave was the only absent member of the council. [49] The Dublin North-West branch of the Labour Party passed a resolution urging William Norton to withdraw from the Council "which exists for the purpose of endorsing Fianna Fáil restrictions on liberty". [50] Hyde instructed attendees not to discuss "political considerations" or "legal arguments", which limited the value of the meeting. [51]
25 February 1943 School Attendance Bill, 1942 Douglas Hyde Referred and struck down [52] [53] Hyde's 1940 instruction was not repeated, after De Valera advised Michael McDunphy, Secretary-General to the President, that it was unhelpful. [51]
13 August 1947 Health Bill, 1947 Seán T. O'Kelly Signed without referral [54] Absentees were George Gavan Duffy, Douglas Hyde, Timothy Sullivan, W. T. Cosgrave, and Richard Mulcahy. [55]
14 June 1961 Electoral (Amendment) Bill, 1961 Éamon de Valera Referred and upheld [56] [57]
6 March 1967 Income Tax Bill, 1966 Éamon de Valera Signed without referral [58] All members attended. [59] On 7 March, before the President announced a decision, the Income Tax (Amendment) Bill, 1967 was introduced and passed by the Oireachtas. [60] This pre-emptively cancelled the contentious sections of the original Bill. [60] [61] Next day, the President signed both bills into law. [61] [62]
10 March 1976 Criminal Law (Jurisdiction) Bill, 1975 Cearbhall Ó Dálaigh Referred and upheld [63] [64] James Dooge, Cathaoirleach of the Seanad, was absent. [65]
23 September 1976 (a) Emergency Powers Bill, 1976 Cearbhall Ó Dálaigh Referred and upheld [66] [67] The meeting, which discussed two bills, lasted 4 hours. [68] Maurice E. Dockrell was the only absentee. [68] President Ó Dálaigh and Attorney General Declan Costello debated points of law in great detail. [28] Minister Paddy Donegan described the President's decision to refer the bill as a "thundering disgrace", precipitating Ó Dálaigh's resignation. James Dooge later suggested that Ó Dálaigh was more concerned with asserting his right to refer the bill than casting doubt on its Constitutionality. [35] As the bill was formally stated to be emergency legislation, most Constitutional safeguards did not apply to it. [35]
23 September 1976 (b) Criminal Law Bill, 1976 Cearbhall Ó Dálaigh Signed without referral [69] Same meeting as preceding
22 December 1981 Housing (Private Rented Dwellings Bill), 1981 Patrick Hillery Referred and struck down [70] [71]
20 December 1983 Electoral (Amendment) Bill, 1983 Patrick Hillery Referred and struck down [72] [73] Absentees were Siobhán McKenna, Seán MacEntee, and James Dillon. [74] The bill would have given British citizens the right to vote in all elections in the Republic of Ireland. The Ninth Amendment of the Constitution in 1984 removed the obstacle with regard to Dáil elections but not Presidential elections or referendums (ordinary or constitutional). [75] The Electoral (Amendment) Act, 1985 extended the franchise for Dáil elections. [76]
5 December 1984 Criminal Justice Bill, 1983 Patrick Hillery Signed without referral [77] Siobhán McKenna and Máirín Bean Uí Dhálaigh were absent. [34]
22 June 1988 Adoption (No. 2) Bill, 1987 Patrick Hillery Referred and upheld [78] [79] Absentees were Tom O'Higgins and Jack Lynch. [80]
30 October 1991 Fisheries (Amendment) Bill, 1990 Mary Robinson Signed without referral [81]
1 December 1993 Matrimonial Home Bill, 1993 Mary Robinson Referred and struck down [82] [83]
1 March 1994 Criminal Justice (Public Order) Bill, 1993 Mary Robinson Signed without referral [84]
16 March 1995 Regulation of Information (Services Outside the State For Termination of Pregnancies) Bill, 1995 Mary Robinson Referred and upheld [85] [86] The act sprang from the Fourteenth Amendment of the Constitution of Ireland in 1992. See also abortion in the Republic of Ireland.
1 April 1997 Employment Equality Bill, 1996 Mary Robinson Referred and struck down [87] [88] 15 of 22 members attended, including the Taoiseach. [89] After the bill was struck down, the Employment Equality Act 1998 was passed instead. [90] [91]
6 May 1997 Equal Status Bill, 1997 Mary Robinson Referred and struck down [92] [93] Charles Haughey was absent. [94]
30 June 2000 (a) Planning and Development Bill 1999 Mary McAleese Referred Part V; upheld [95] [96]
30 June 2000 (b) Illegal Immigrants (Trafficking) Bill 1999 Mary McAleese Referred §§ 5 and 10; upheld [95] [97] Same meeting as preceding
8 April 2002 Section 24 of the Housing (Miscellaneous Provisions) (No. 2) Bill, 2001 Mary McAleese Signed without referral [98]
21 December 2004 Health (Amendment) (No. 2) Bill 2004 Mary McAleese Referred and struck down [99] [100] Charles Haughey was the only absentee. [16]
9 May 2007 Criminal Justice Bill 2007 Mary McAleese Signed without referral [101]
22 July 2009 (a) Defamation Bill 2006 Mary McAleese Signed without referral [102] 19 of 22 members of the council were present; the meeting lasted over 3 hours. [103] See also blasphemy law in Ireland.
22 July 2009 (b) Criminal Justice (Amendment) Bill 2009 Mary McAleese Signed without referral [102] Same meeting as preceding
21 December 2010 Credit Institutions (Stabilisation) Bill 2010 Mary McAleese Signed without referral [104] See 2008–2011 Irish banking crisis
29 July 2013 Protection of Life During Pregnancy Bill 2013 Michael D. Higgins Signed without referral [105] See Protection of Life During Pregnancy Act 2013. [106] Of 24 members, 21 attended; Mary Robinson, John Bruton and Albert Reynolds were absent, though Robinson and Bruton made written submissions. [107] [108] The meeting ran from 3.15pm to 6.45pm. [107]
29 December 2015 International Protection Bill 2015 Michael D. Higgins Signed without referral [109] Liam Cosgrave, Mary Robinson and Gearóid Ó Tuathaigh did not attend. [110] The press release stated the meeting would consider whether: [111]
  • sections 56 and 57 of the bill violated any part of the Constitution
  • any part of the bill violated Article 42A of the Constitution
  • section 78 of the bill violated Article 29.6 of the Constitution

See also

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References

Footnotes

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  2. Constitution of Ireland, Articles 31–2
  3. 1 2 Constitution of Ireland, Article 14.4
  4. Constitution of Ireland, Article 14.3
  5. Constitution of Ireland, Article 31.2
  6. Constitution of Ireland, Article 31.3
  7. Constitution of Ireland, Article 31.5
  8. Irish Government, 33rd Amendment. "Constitution of Ireland". Irish Statute Book. Government Printer. Archived from the original on 15 March 2015. Retrieved 9 April 2015.
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  11. Constitution of Ireland, Article 31.6
  12. Constitution of Ireland, Article 31.7
  13. Constitution of Ireland, Article 31.2(ii)
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  20. Constitution of Ireland, Article 13.2.2°
  21. Constitution of Ireland, Article 13.2.3°
  22. Constitution of Ireland, Article 13.7.1°
  23. Constitution of Ireland, Article 13.7.2°
  24. Constitution of Ireland, Article 22.2.6°
  25. Constitution of Ireland, Article 24.1
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