Thursday, 24 April 1941
Dáil Éireann Debate
An Ceann Comhairle: I have written to the Deputies concerned informing them that I purpose ruling out of order amendments Nos. 1 to 6 inclusive, 8 to 22, 24 and 25, 30 and 31, 34, 40 to 43 inclusive, 49 to 51 inclusive, and 54 to 60 inclusive. I had some doubt about 35, 36 and 37, but owing to the alterations that are being made and the proposed change in the definition of a time of war, I have decided to give Deputies the benefit of the doubt and allow the amendments to be considered. I am also allowing two other amendments as being analogous to a provision in this Bill under Reference 10 and being ostensibly textual. I am ruling out the amendments, since I am treating this as any other amending Bill and following the established procedure regarding such Bills, according to which amendments unrelated to the provisions already contained in the Bill are not allowed.
Professor O'Sullivan: I should like a little further clarification. We have what purports to be an amending Bill— it calls itself such—and it is a Bill which brings more changes in the Constitution. I suggest there is no principle whatsoever in this Bill. I am putting it to you that there is no principle in the Bill beyond what is contained in the preamble. There are quite a large number of amendments already in the Bill as it went through Second Reading. There are amendments to 16 separate Articles in the Constitution. Beyond the fact that these Articles are in the Constitution, there is no organic connection between them. I see the difficulty of knowing precisely what we are to do with a Bill presented in this form; but, on the other hand, I understand the general rule on which our practice has been based is that amendments must not be out of touch, so to speak, with the principle of the Bill.
I would be glad if you could inform me what is the principle of this Bill, beyond the purpose to make certain amendments in the Constitution which are dictated to us by experience. I suggest that experience is not, as the Taoiseach might suggest, confined to  Government Departments. He based his desire on the fact that he had learned from various Government Departments that there were certain things that did not work smoothly or satisfactorily, and he wanted to change these while he still had some respite from a Referendum on amendments, no matter how trivial. The experience of other members of the House is at least as important. We all have had experience of the methods adopted in the Seanad election. I will take that as an example, but I am not going to discuss it under the guise of asking you to consider this. My experience is that, in an attempt to draw up a satisfactory Seanad, we were shackled unnecessarily by the restrictions imposed upon us in the Constitution. My suggestion is that an amendment of that particular matter is much more strongly dictated by personal experience than by some of the amendments, trivial or important, that are already down.
You have 16 Articles of the Constitution being amended. I am not prepared to discuss what amendment is important and what is not. I take it that in this so-called important document every amendment ought to be important. It is, so to speak, the basis of the whole nation. Though I confess I do not know what it means as a result of various interpretations given to it in the courts and elsewhere, I must accept it as a fundamental document. I put it that now that as the Taoiseach is availing of his last chance of quietly amending this measure, a similar latitude should be given to members of the House. I do not think there would be an unnecessary strain on the rules. When there is no principle in the Bill, I do not see why our amendments should not be considered. Otherwise your ruling, Sir, would practically confine our amendments to the amendments proposed by the Taoiseach.
Taking your ruling as to the nature and the number of our amendments, that you feel compelled to rule out of order, I confess I do not see how the change from 60 days to “sixtieth” affects the matter. There are other  amendments of a similar character in the Bill. There are amendments almost as important—for instance, an extension of “in time of war”, “the Army” and “the cessation of the war”. They are much more dangerous than the useful amendments my colleague and I put down. Therefore I ask you to reconsider the matter on the ground that there are only two ways of getting at what is the general principle of the Bill. One is to find no principle whatever in the Bill. The only other way is to go to the Title and Preamble: “And whereas experience has shown that certain amendments of the Constitution are desirable.” I agree. It was on that invitation my colleagues and I troubled to put down amendments.
An Ceann Comhairle: Owing to the exceptional character of this Bill I have given long and careful consideration to the matter. Though from the mere number of clauses or references in the measure and the number of Articles of the Constitution affected it might be styled an omnibus Bill, it is not such in essence. We have had similar amending measures affecting, for instance, the land code and the local government code. In those cases, some going back many years, amendments were disallowed as being outside the scope.
That is the norm by which I have been guided. The principle of the Bill is to be gathered not from the title and preamble alone, but from the scope of the Bill. The Bill contains only two clauses of a fundamental nature. I do not imagine that the Deputy was serious in his contention that many of the alterations proposed in the Bill are radical or fundamental.
I am confirmed in my opinion by the tenor of the Second Reading debate, on which it was stated that the majority of the proposals are trivial  and that not more than two are fundamental. Some half a dozen of them would merely improve the Irish text. Many others are proposed for clarification or to secure closer conformity between both texts.
It is obvious that such an amending Bill does not throw open the whole Constitution for amendment. It could not be reasonably contended, for example, that a proposed minor verbal alteration in the Irish text entitles Deputies to endeavour to make fundamental alterations in the Article concerned; nor would it be reasonable, or in accordance with established procedure to move amendments radically affecting the powers and privileges of the Uachtarán, the electorate for and the method of his election, the method of election and the constitution of the Seanad or the abolition of the Referendum; matters which are not in any way affected by the proposals submitted to the Committee.
An Ceann Comhairle: As regards “time of war”, I am allowing amendments 35, 36 and 37. If the Deputy objects to my allowing two other amendments or thinks I erred on the side of leniency I am quite willing to rule them out.
Professor O'Sullivan: No. They are amendments to an amendment. It is the doubt you speak of that troubles me. We are proposing to amend what is really in the Bill, not what is in the Act as far as “time of war” is concerned.
Professor O'Sullivan: With regard to the minor matters, I am not in the position of the vast majority in this  House. I cannot claim a fluent knowledge of Irish. I presume the vast majority can. I do not know whether the amendments are important or not. I see that where a whole sentence of Irish is put in there is no corresponding amendment in English. I find that difficult to understand. Another thing that puzzles me is this: why it is that amendments are not put in in English as being translations of Irish rather than vice versa. If there was any mistranslation it would be from the Irish to the English.
Professor O'Sullivan: I agree. Possibly it was done afterwards. What is the procedure in dealing with this Bill? There are two sections. We have a large number of explanations of the Schedule in detail. Are we to treat each reference number as if it were a separate section in Committee?
An Ceann Comhairle: At a meeting of the Committee of Procedure and Privileges on the 22nd January it was decided that the Bill should be printed bilingually and that questions put bilingually would cover both texts as the Bill is one document. The Deputy may go down the References in the Schedule and ask questions, seriatim.
Professor O'Sullivan: I should like to have an explanation of the different numbers. I think the Taoiseach knows my inability to deal with the national language. I therefore consulted a number of people as to that small change, and they consulted some dictionaries. My difficulty is that some people say there is no difference between the two words, while others say there is, and that the word “cios” is much more restrictive than “revenues”. I am in the unfortunate position of not knowing whom we are  to follow, and I may say that I am under the uneasy impression that, as the Irish text is to be the governing text in future, we shall be at the mercy not of what the House decides but of the official translator at the moment.
The Taoiseach: The position with regard to this change is that the word “fághaltas” in Irish is regarded as having a wider meaning than was intended. It would be regarded as including Appropriations-in-Aid. Looking through the text, we find that a word with a more restrictive sense, that is, “cíos” occurs and the word “cíos”, therefore, is proposed to be substituted as a word which will give more directly the idea of revenues that come into the Central Fund and not in the sense of Appropriations-in-Aid. “Fághaltas” might be regarded as including Appropriations-in-Aid.
An Ceann Comhairle: I hope I did not leave Deputy O'Sullivan under the impression that a question would be put on each reference number. Such a course would be quite unprecedented. They may be explained and discussed seriatim, but the question should be put on the Schedule—that the Schedule (as amended or unamended) stand part of the Bill.
Professor O'Sullivan: May I suggest that the whole procedure is radically wrong? I know that you, Sir, are not responsible for that, but here we have amendments to the Constitution which we must take holus-bolus. We may like 20 of them, be indifferent about five and strongly object to another five. Yet we must take all or none. That reduces the whole thing to such a farce that I will speak no further on it.
Professor O'Sullivan: Let us take it that there is money in the hands of the State. There is interest on that money. There is land in the hands of the State and there is rent from that land. Does that come within “cios” or not?
Professor O'Sullivan: The other point is: how does it come about that the amendments are to the Irish and not to the English text? Suppose the two texts disagree. Surely it is the English text that ought to be amended to bring it into harmony with the fundamental text passed by the House and not vice-versa. If it happened in one or two cases, we might say that the English text in this instance happens accidentally to convey our meaning, but when I see it happening in every instance, with all the amendments on one side and none on the other, I confess it puzzles me. It might seem as if we had passed the English text and that the Irish text is a translation, which is something I find it extremely difficult to believe.
The Taoiseach: What I explained about these two texts originally is that they were prepared concurrently. There were certain ideas which had to be expressed in the form of a written document and these ideas were expressed both in Irish and in English. Nobody is going to suggest at the moment that there are not terms in English which, over a long period of time, have acquired very technical and definite meanings. We have not got the same definitencess in regard to certain  words in Irish, but we are gradually getting it through the series of Acts passed here and the translations made of these Acts. We are gradually acquiring a technical meaning in law for certain words. They are becoming more and more words of art in law, if you like.
There was a question of expressing “revenue” and the word “fághaltas” as meaning that which comes into the State and is secured by the State was used. It would be a natural word for “receipts” or “revenue”, or what is got in, but as the word “cíos” has been used in the translations of statutes and in the document here in a more precise term-of-art sense, it was thought it would be an improvement and bring the words used in the Constitution more in conformity with the words used elsewhere in Acts of Parliament in regard to revenue. That is really the point at issue. What happened is that, when the State was established, a Translation Department was set up. They had very few precedents to follow and they had to build up a legal phraseology for themselves slowly and bit by bit. We have had the experience of a number of people working in that Department who know the work that has been done already and are acquainted with the precise terms used as terms of art in this matter. The real point is that, in the opinion of those working on this over a period of years, the word “fághaltas” had better be substituted by the word “cíos”.
The Taoiseach: No, because, in the case of the English text, the word had become, by practice, defined and  limited. The trouble is that in the case of the Irish language we have not, through long continued practice and from definitions and decisions of various kinds, arrived at the same precision in relation to Irish words, and this is designed to make it as precise as we can.
Professor O'Sullivan: The Taoiseach gave me the example of Appropriations in-Aid. We use the word “revenues” in the English text of the Article. That may have a wider or a narrow meaning, but does it include Appropriations-in-Aid or not?
The Taoiseach: With regard to reference No. 2, the point is that, in the original form of the Constitution, no provision was made for holding a fresh election for the office of President, in the event of the death or resignation of the President, or the establishment of his permanent incapacity, between the date of his election and the date of his entrance upon office. The amendment provides for such a contingency. It is possible that, when the President had been elected, between the date of his election and his taking up office, he might die, resign or become permanently incapacitated, and the purpose of the amendment is to provide for that. You have the phrase “whether occurring before or after he enters upon his office” and, in order to get that in the Irish text, it is necessary to take out one portion and insert another.
In reference No. 3, the Irish text of Article 13 refers to communication  by the President with the Oireachtas, which includes himself. In the Irish text, the word “Oireachtas” was printed where it really should have been “two Houses”. Further, the use of the word “chun” suggests that the President is precluded from personally addressing the Houses of the Oireachtas. The substitution of the words “fá bhrághaid Tighthe” is, accordingly, regarded as necessary. The use of the word “teachtaireacht” in the Irish version is regarded as implying that the President may not directly or personally address a message to the nation—for instance, by means of a wireless broadcast. That is not intended and the substitution of the word “aitheasc” is recommended. That is giving the broad sense to “message” which you have in the English.
The Taoiseach: Article 14 of the Constitution provides for the exercise of Presidential powers and functions in certain circumstances by a commission consisting of the Chief Justice, the Ceann Comhairle, and the Chairman of Seanad Eireann. Under the present wording, it would appear that only those functions and powers which are conferred on the President directly by the Constitution may be exercised or performed by the commission. It is necessary to amend the wording so as to ensure that the commission will be empowered to act in place of the President in respect of additional powers and functions conferred on the President by law. The words “by or under this Constitution” are, accordingly, being substituted for “by this Constitution”.
Professor O'Sullivan: Owing to the change of occupancy of the Chair, may I refer to one of the few amendments which escaped the Chair's guillotine. I refer to amendment No. 7. I cannot see how it is in order considering the other rulings. It is not related to anything in the Bill. It is simply a desire on the  part of my friend, Deputy McGilligan, to give a more æsthetic finish to the text, but I cannot see how it is in order.
The Taoiseach: Reference No. 5 is an amendment of Article 15 which affects the Irish text only. It is intended for purposes of clarification and to remove a grammatical error, namely, the absence of a verb governing “taisteal i n-aisce, etc.” The point is a splendid example of an anacoluthon. It is perfectly clear, but the parsing of it would not be easy.
The Taoiseach: Reference No. 6 is intended to make clear that the power to nominate 11 members of Seanad  Eireann, when exercised in consequence of a dissolution of Dáil Eireann, is vested in the incoming and not the outgoing Taoiseach. The word “Taoiseach” was used and we want to make clear which Taoiseach was intended.
With regard to reference No. 7, the words proposed to be deleted were allowed to stand owing to an oversight during the passage of the Constitution through Dáil Eireann. The amendment is necessary in order to bring the Irish and English texts into conformity. There was a big amendment in question and, in getting a clean text, portion of the text, as it originally stood, was allowed to remain.
The Taoiseach: As regards reference No. 8, the words “é bhreathnú mar breathnóchaí Bille a tionnscnóchaóchaí i nDáil Eireann” are capable of being construed as a reference merely to the procedure for the consideration of a Bill. The amended wording is regarded as conveying more clearly the intention of Article 20.2.2º. As it is now, it is necessary that it should be regarded as a Bill introduced in Dáil Eireann.
The Taoiseach: The point is that there seems to be a suggestion there that the Seanad could pass a Money Bill. This is to make it clear that it has only power to recommend. It is by way of reference. It has a reference to the power of the Seanad, and it might seem to suggest that it could pass a money Bill.
As to reference No. 10, it was felt that the time given to the President for consideration was too restricted. For instance, Saturday and Sunday might possibly intervene. This is to make sure that he will at least have three clear days for the consideration of a Bill before signing it. The purpose is to make sure that that will be so.
The Taoiseach: When a Bill is presented for signature there is the possibility of having a petition and there is also the question that the President has to consider, whether in fact there is any need to refer the Bill to the Supreme Court as to whether it is or is not in accordance to the Constitution.
Professor O'Sullivan: I am suffering under this disability. There was a general ruling made on some 30 amendments on the ground that they were not related to what was in the Bill. Here the Bill itself prescribes three days. We want to say that it is unnecessary to wait three days, and we put down an amendment for the deletion of the words “not earlier than five and”, but we do not extend it at the other end. Might I ask you, Sir, if you will be kind enough to explain to me how that particular amendment, namely, amendment No. 25, is not related to what is in the text of the Bill. The same obviously applies to No. 26. There is a certain procedure laid down, and we propose to alter that procedure somewhat. We are amending the actual Bill before us.
Professor O'Sullivan: I am not asking why in general terms, but how these two particular amendments, which affect what is in the Bill before us, are declared to be out of order and not related to what is in the Bill. For instance, let me take No. 26:
Professor O'Sullivan: We pass this Bill and, at a time that seems good to him, when he is not occupied with more important matters, the Taoiseach will get prepared what he now calls a clean copy. Does that text come before the House?
The Taoiseach: If I might explain. There is an amendment by the Deputy, I think, with reference to referenda. If referenda did not exist then the need of delay would not be so great for a petition to be presented to the President and to enable him to consider that. There is also the question of whether or not he would refer a Bill to the Supreme Court. I do not know, of course, what was in the mind of the Ceann Comhairle. It seems to me that he regarded it as consequential; that he decided that the amendment with reference to the deletion of referenda could not be accepted and it had to be ruled out of order, and, consequently, the other, which in a sense would be consequential upon it, would go with it, because it seems to me that he regarded it in a sense as consequential on the removal of referenda. In this No. 10 the real point is to give the President time for consideration and also to allow the necessary time for a petition under one of the Articles to be presented.
The Taoiseach: In regard to reference No. 11, Article 25 (4) of the Constitution provides that every Bill signed by the President shall become law on the day on which it is signed and shall then come into operation unless the contrary intention appears. The section further provides, for the promulgation of Bills by the President, the enrolment of the signed texts in the office of the Registrar of the Supreme Court and the issue of official translations. No provision has been made, however, for the possibility of a Bill being passed in both the official languages. The amendment deletes the existing Section 4 of Article 25 and substitutes a new section dealing with the same matters and, in addition, providing for the case in which a Bill is passed or deemed to have been passed in both Irish and English. I think the only case in which we passed or considered any measure in Irish and English was that of the Constitution. But clearly that is a practice that might possibly grow, and this provides for the signature of both these texts and, in the case of a possible clash, or if there is any doubt, then the Irish text would prevail.
Professor O'Sullivan: With reference to paragraph 4 of reference No. 11, the President signs a text in one language and a translation is provided for that by a translator. What is the force of that translation in a court of law?
Professor O'Sullivan: First of all, the President signs, shall I say, the English text. It is possible that there might be a conflict between the English and the Irish texts. The Taoiseach has explained why that is possible. It is possible. The English text of a Bill, signed by the President, is translated into Irish. There is a conflict of meaning, and that question is raised in the courts. It is not the Bill that this House understood or the Bill that was signed by the President, that is to prevail.
“2º A copy of every text so prepared shall be signed by the President and countersigned by the Taoiseach and the Chief Justice and, when so signed and countersigned, shall be enrolled for record in the office of the Registrar of the Supreme Court.”
The Taoiseach: That will only cause confusion. Let us be clear on one point at a time. If the Deputy wishes I will deal now with reference No. 11. The point is that English is the language that is chiefly used here since it is the language that the great majority of the members of the House understand and debate in. Ordinarily, Bills are passed in English, and the English text is signed. The only exception was in the case of the Constitution itself. That exception was made for a good reason. As I have said, the English text is signed. As soon as possible afterwards, an official translation is prepared by the Translation Department. That is issued with the Bill, but it is not contended that it should have priority as far as the texts are concerned. It is a translation, pure and simple, and it is valuable from the point of view of the language. One of the effects of doing that is that we have rapidly reached the position in which we have people who are now experts and have got well-defined terms and phrases in Irish in legal matters. It is preparing the way for the day on which it may be possible for this House to deal with these matters solely in Irish. In the Constitution, as it stood, no provision was made for the possibility of having a Bill passed in both languages. As I have said, the only exception to that was in the case of the Constitution itself. When this amendment is made, you will have Bills passed in both languages. It is quite  possible, if there is a sufficient development of the language, that the text of a Bill would be passed in Irish alone. We are making provision here for the possibility of having the same Act passed in both languages. If it is passed in both languages, then both texts will be signed, and, should there be a conflict, both will be authoritative texts, either of which can be appealed to. If there should be a conflict between the two texts, then in that case, and in that case only, the Irish text would prevail. That is what is being provided for in reference No. 11.
“5º As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the President or, where the President has signed the text of such law in each of the official languages, both the signed texts shall be enrolled for record in the office of the Registrar of the Supreme Court, and the text, or both the texts, so enrolled shall be conclusive evidence of the provisions of such law.”
The Taoiseach: I take it that what is involved there is the question of enrolment. If the President signs one that is enrolled, and if he signs two they are enrolled. If he signs both texts, then both are authoritative texts. This provision, I think, meets all the various cases of enrolment that are likely to occur.
The Taoiseach: This amendment adds a new section to Article 25 providing for the preparation from time to time, under the Taoiseach's supervision, and the enrolment in the office of the Registrar of the Supreme Court,  of a revised text of the Constitution embodying all amendments made therein. Some remarks that were made the last day would seem to suggest that there is a misunderstanding here. The point is that you want to know what is the authoritative Constitution at a particular stage. Amendments to it have been passed, and you want to have a clean text, a text which will indicate what the Constitution is after it has been amended. The function that is being given to the Taoiseach here is to see that such a clean text is prepared. I am using the word “clean” in the sense that you will then have the Constitution as it appears after it has been amended. That clean text, when prepared, will be a guarantee that it represents the Constitution as it is in force at a particular moment, with the amendments included. It will be a guarantee that it is the text which is to be signed, first of all, by the President, and, as it will represent the law as it exists, when such amendments have been passed, the Chief Justice's is added as a further confirmatory signature. From the remarks the last day it would seem to be suggested that the Taoiseach could somehow revise the Constitution. That is not so. This text must represent the Constitution as it is at the moment. It was suggested that the Chief Justice should not be brought into legislation. He is not being brought in. The legislation actually has taken place, the necessary amendments have been passed through the House and the text is in definitely ascertainable language. It is only a question of preparing that text, just as occurs when we pass a Bill in this House.
Somebody has to prepare the text for enrolment from the time it is passed here until it is enrolled. Of course, we could get a certain document and have it brought before the House as a final stage in legislation, when the House would be presented with the actual copy to be signed by the President, and that one single copy would be handed round to the members of the House for inspection or to a committee set up to make certain  that the text represented what had been passed by the Oireachtas. We do not do that at present: we assume that that work has been done properly, that the amendments have been properly inserted and that the text, as passed, is the text presented to the President for signature. The suggestion that the Taoiseach could do something with it is exactly the same as the suggestion that after a measure is passed by both Houses it could be altered by somebody charged with its preparation for presentation to the President for signature.
This deals with purely the preparation of a text and the guarantee that the text is the authoritative one, representing what was passed, is first of all the guarantee of the signature of the President, and then, secondly, the counter-signature of the Taoiseach, who would be aware of the changes made in the text. He would take whatever steps were necessary to ensure that the copy presented for enrolment was precisely the Constitution as it stood at that date. I feel that the amendments that have been proposed have been largely due to a misunderstanding as to what was intended or to a hasty reading of the present proposals.
Professor O'Sullivan: First of all, I think it is quite clear that the Chief Justice is not necessary here at all. If the Taoiseach's statement is accepted, the Chief Justice would be equally necessary in any other amending Bill.
Professor O'Sullivan: He should not, and that is our contention. It is quite obvious, by bringing him in, that the Taoiseach does envisage the possibility of somebody misusing his position— by mistake or deliberately—to produce the wrong text. There is no guarantee, unless that is a reasonable possibility; as there cannot be a guarantee unless it is a guarantee against something.
Professor O'Sullivan: There must be something to be assured against if he is brought in, and that something is that the actual text might not correspond to the amendments. In the ordinary law there is a certain safeguard, there is an amending Bill passed by this House on the one hand and the original Bill on the other hand. In the present instance, however, when the Taoiseach has finished the result is that neither of the Bills is left, but an amalgam of both. We have no such procedure or precedent up to the present. Instead of having an Act and an amending Act, there is an Act and an amending Act which by somebody else—and not by this House—is amalgamated into one and then the Act and the amending Act pass out and the amalgam prepared by a person not under the control of the House takes their place. To me that principle seems to be wrong.
Secondly, as far as the language is concerned, I am not a lawyer and, therefore, I have to discuss what is here. In the case of an ordinary Bill, it is sent up to the President by this House and if it does not in any way prove repugnant to the Constitution he must sign it. Reading this section, there are two possibilities apparent to me. Either the Chief Justice has a function or he has not, no more than the President has in signing an ordinary Bill. If we are to follow the actual texts, he must sign, and the Chief Justice must countersign. There is no suggestion that he must examine it. So far as the actual wording is concerned, he is a mere rubber stamp. That is a reasonable meaning to take from the text.
I do not see, however, that that is what the Taoiseach meant. He meant something else—that is, to see that a trick is not played on the House by whoever is Taoiseach. That is the purpose of bringing in the Chief  Justice. There could be no other purpose, unless bringing him in is entirely gratuitous and, in that case, why bring him in? If it is to give a guarantee to the Oireachtas, that guarantee must be against something and that something is, I say, the possibility of a trick being played on the Oireachtas by the Taoiseach. The text says that the President shall sign it, and that the Taoiseach shall countersign it. In the ordinary way, the President would sign any Bill put before him. In the same way, the Chief Justice must countersign this, whether he believes in it or not. That is one possible interpretation and there is no use in saying that it is not a possible interpretation. I hope that, if that is not what the Taoiseach means, he will clarify it, and say: “If he is satisfied that the text does represent the Acts, then he shall sign it and when so signed it shall become law.”
As the ordinary words stand, it seems to me that he is a mere rubber stamp for the purpose of countersigning. If you take the other meaning, that he need not sign it—if he refuses to sign because he thinks the text does not represent the two Acts—then he is being brought in as a kind of watch on the Taoiseach. I suggest that the normal way to get the full sanction of the Oireachtas is that it should come before the Oireachtas. We are scrapping two Acts and putting the texts of two Acts, and something else, in their place. I think that certainly should come before the Oireachtas.
The Taoiseach: A number of points have been raised. Perhaps I should take the last one first. There seems to be a difficulty. What is to come before the Oireachtas? A single copy. This is the thing that is going to be enrolled. It is passed from member to member, with the remark: “Here you are. This is the copy that is going to be signed by the President. We are going to send this copy up.” Suppose that from the time the Oireachtas saw it to the time it got to the President it was changed, and the new copy was not in fact the copy handed around, but the copy presented for signature. I do not think you can do it that way. The thing is that the amendments will be: “Delete  such-and-such and insert in its place so-and-so.” The function given to the Taoiseach is to see that the deletion and the insertion are carried out, and that a clean text is prepared. It is a text of what? Of the Constitution as it is at the moment it has been passed. It has already been passed and signed by the President. The amendments have been signed by the President. They have become the law. The Chief Justice is naturally brought in as a person to see does this text that he is going to countersign represent the constitutional position as it is at the moment. In other words, he would take these two Acts that Deputy O'Sullivan has been talking about, the original Constitution on the one hand, and the amending Acts, and put them side by side, and see whether the deletions and the insertions were carried out, and that the text was a clean, proper and full text.
We cannot provide against every possibility. In fact, with the best will in the world, sometimes a mistake may come in and it is useful to have more than one person to check it before the thing is finished. The Deputy has made a statement and I am wondering if it is true. Certainly, if I happened to be President and I was presented with a copy of a text of a Bill which was different, if I had been following the legislation I would hold it up. In all probability the President, if he were presented with a text which he saw was not the text of the Bill that had been passed, would certainly hold it up until he had got in touch with the Clerk of the Dáil or the Ceann Comhairle to find out what was the meaning of this. Surely it is the Bill that is passed by the Dáil that he is supposed to sign. He is not supposed to sign a spurious document. I believe, in a case like this, if the Taoiseach prepared, or even by mistake, a spurious document eventuated somehow, that spurious document would really not be in accordance with the text here at all or with the provisions of the Constitution here at all. I think it must be in fact the authoritative text and you want to have somebody responsible for its preparation, to supervise its preparation, and then, as a final check,  you have the Chief Justice who is a man versed in the law and who would be able to see whether this text does represent the law as it is. It occurred to me—I do not know whether it would help in any way—that it might be a further safeguard if you associated, perhaps, the Ceann Comhairle of the Dáil and the Cathaoirleach of the Seanad in the countersignature. Another point raised by the Deputy, which I will look into, is whether our text leaves it discretionary for the Taoiseach or the Chief Justice to refuse their signatures. I certainly think they should refuse their signatures if the text was not what it purported to be.
The Taoiseach: We have the word “shall” there. I do not know whether there is a weakness there. It did not occur to me that there was. I would like to examine it somewhat more carefully to see whether the discretionary power seems to be taken away, whether the “shall” there is imperative and whether, when the text is signed by the President, the others have got to countersign it or not. “Shall be countersigned” are the exact words there. We may have to amend, that. I am very glad that was pointed out because the intention was that when the text was signed that was taking with it the assurance of the signatories that the text was what it purported to be.
Professor O'Sullivan: The Taoiseach spoke of handing around the exact document. Of course, that is not what I was referring to. We never get the exact document in the case of any Bill, but we get the text of any Bill we are asked to pass.
Professor O'Sullivan: The operative Act. What is to happen in this case? We pass an Act and we pass a second Act. By the action of a body that is  not the Oireachtas these are replaced by a different text, a new Act, if you like.
Professor O'Sullivan: For purposes of law, it is the text of a new Act because it is the thing that will be operative in the courts and will be decisive. In the ordinary case we see what is being passed. We do not see any complete text of this whole thing as it stands. I do not want to see the actual copy of the thing that is signed but surely we get the text or what is a copy of the text of every Bill passed through this House by various stages. In this fundamental document, we do not get it. The real thing that ultimately becomes the operative law will be the amalgam framed by people outside this House possibly under the supervision of the Taoiseach. I put it to the Taoiseach that if he followed the ordinary practice in connection with the amendment of Bills and of the laws there would be no trouble at all. Why are we departing from the ordinary practice? There is an Act of Parliament and, so far as it affects the lives of the ordinary citizens, much more important, possibly, for them than the Constitution, but no effort is made that I know of, to get the Principal Act and several amending Acts and make a clean copy out of them. It has never been done in that way so far as I know. This is completely revolutionary, and these are Acts that—I put it quite seriously,—no matter how important you might think the Constitution— affect the daily lives of the people much more intimately and much more often than the Constitution does, and yet there is no suggestion that we make a clean text of these, bringing in the Taoiseach and the President and the Chief Justice. Why are we not following the ordinary practice here? We have Acts passed by this House amending the Constitution. Leave it at that. There is no justification for this new procedure that is being adopted.
The Taoiseach: I think the Deputy, on a little reflection, will see that there is considerable justification for it. As a matter of fact, we have been considering  whether we should not get consolidation of a number of Acts of Parliament where we have amendments and amendments of those amendments, and so on. We have had an example, as the Deputy knows, in the case of the university statutes. Frequently when you have amendments of amendments it is extremely difficult to know exactly what is the existing position. You almost want a lawyer to interpret it. You are getting perpetual consolidation. You are getting a clean text. It is desirable that a person, who is not necessarily a lawyer, can see what is our Constitution at this moment. He takes up the text, reads a clean, straightforward text. That text had to be brought about in this way, that the amendments to delete so-and-so and insert so-and-so have to be passed here in the House as in the case of any ordinary Act, and the function of the Taoiseach is this, to see that the insertions are put in and the deletions are carried out, and that you do get the text as it is at the time. Surely, the signature of the Chief Justice, who is apart from any political considerations or any, desire to treat the matter except from its purely legal aspect— and I am anxious that he should have discretion not to sign, unless it is the text—should be a guarantee that the work has been carried out as was directed by the Legislature in its Acts, and that this text, this actual document which is there, is the document in question. I am quite prepared, if it will add to the assurance, that it should also be authenticated by the signatures of the Ceann Comhairle and the Cathaoirleach of the Seanad at the time. I think these signatures ought to be sufficient, but I do hold it would be a great advantage to have such consolidation, and if we could do it in the course of ordinary law— although it might be difficult—it would simplify considerably the position of the law because then, with regard to amendments to amendments, and so on, you would know what is the exact legal position. The Constitution is supposed to be a popular document, in the sense that it was passed by the people, and, in regard to amendments to the Constitution, it is a document  which the ordinary man in the street ought to be able to understand.
The Taoiseach: My intention was that these names should be authenticated, and that it should not be simply a mere matter of form. It is an interesting point that has been raised: whether if the President is presented with a document which purports to be an Act passed by the two Houses of the Oireachtas, and which is different in text, he should be compelled to sign it. I certainly think he should not. If he should hold that the document is not for the purpose for which it was intended, he should not sign it.
The Taoiseach: Yes. Sometimes doctors differ, and even lawyers differ, but they make sure between themselves that, in the final version, there will not be any doubt. They try to resolve their doubts in a clearer text.
Professor O'Sullivan: As a result of what happened, by a slight oversight, the Taoiseach explained the section first. Then, some time or other during that, the amendment was moved, amendment No. 26. It is on that we divided, on amendment No. 26. Therefore, amendment No. 28 is still to the good.
The Taoiseach: That is a question which I promised Deputy O'Sullivan to examine. He raised a particular point about “must” and “shall”. The intention is that his signature should authenticate the text, and indicate that he is satisfied that the text as about to be enrolled, the text which he is signing, does in fact represent the Constitution with the amendments as then passed.
The Taoiseach: If he is satisfied that the text to which he is going to put his signature does represent the Constitution as it is then in force with the amendments embodied in the text; that and nothing else. That is the intention. In connection with the “shall” there, it has been suggested by Deputy O'Sullivan that the President has to sign a Bill. Well, I am not a lawyer, but I believe that if the President is presented with something which purports to be the Bill but is not the Bill passed by the Oireachtas he need not sign.
Professor O'Sullivan: I hope the Taoiseach does not imagine, because I happened to draw that analogy for a moment, that my argument rests on that as to what the section means. That is on the meaning of the word “shall”.
The Taoiseach: Oh, no, but it was used as an illustration of the effect of “shall”. I have promised to look into that, because the intention is not that he shall of necessity sign a document presented to him by the Taoiseach for his signature. The intention is that his signature shall be evidence that he is satisfied that the text which he is signing is in fact what it purports to be.
Professor O'Sullivan: In the hope that the result of this reconsideration will be to make the text clear, I again express grave pessimism as to the advice which will be given by his legal advisers; there will be no doubt whatever.
Professor O'Sullivan: In the hope that a change of the text will be brought about as a result of reconsideration so as to make the text perfectly clear in the sense now indicated by the Taoiseach, I express my pessimism as to the advice which he will get from his legal advisers, because I am sure they will say there is no doubt whatever about the text, and all this talk  here is rubbish. That is generally the advice given by experts.
The Taoiseach: We have plenty of other work to do. I am satisfied to do that quiet examination in a more appropriate place. The Deputy, apparently, has not quite the same pressure of time that we have.
Mr. Hurley: Did I understand the Taoiseach to say, with reference to this amendment No. 28, that it does not make any reference to the obligation on the President to sign the text of an amendment willy-nilly whether he agrees or disagrees with it? Did I understand the Taoiseach to say that? Suppose a text of an amendment comes before the President, and he does not like it for some reason or other—not for any constitutional reason—would he then have power to refuse to sign?
The Taoiseach: No. The President has to sign a Bill passed by the House, except in certain conditions to which there is reference. He has no legislative option to appending his signature to the text passed by both Houses.
The Taoiseach: It will have been passed in the main, that is the Constitution as a whole just as we have it here, will be existing at the moment. There will be amendments. Acts will be brought in, and the amendments will have to be signed independently. Then there will be the question of preparing, as I have tried to explain, a  clean text, that is instead of having to construe “delete so and so” and “insert so and so” the function of the President will be to see that the deletions ordered in accordance with the amendments are carried out, that the insertions are put in, and that a clean text, which represents the Constitution as it is at that moment with the amendments, is prepared and is presented for his signature. It has to represent the Constitution as it is at that moment, with the amendments fully taken in, and the signature of the Chief Justice on that account means—“Very well; I give my assurance that this is the Constitution as it is at the moment;” that is that the amendments have been properly carried out. That is all it will mean. It is presented then to the President, and the signature and counter-signatures are put on before it is enrolled.
The Taoiseach: If I were President and got a text purporting to be the text of a Bill passed by the two Houses of the Oireachtas, and if I found that the text so presented to me was completely at variance with the document which came in following the debates in both Houses, I would try to get authentication of that text before I would sign it. I would ask if there had not been some mistake and I would write to the Ceann Comhairle or the Clerk of the Dáil and say: “Is it possible that there was a mistake made here?” It would be only on the assurance of whoever is the  authenticating authority in this House that I would sign. I would sign only when I got the necessary certificate indicating that it was definitely the text.
Mr. McGilligan: According to the Constitution the President must not have resort to anybody. He has no judgment in the matter and he must sign. Under the Constitution, if he is advised to sign, he must sign.
The Taoiseach: I do not agree. If all the lawyers in Ireland expressed the opinion that I should sign something which, in my opinion, was not what it purported to be, I would not sign it. If something is presented to me which is, in fact, a fabrication, I would not sign it.
Professor O'Sullivan: I am sorry this has arisen, because I am afraid that when the Taoiseach is a candidate for the Presidency there must be borne in mind his determination to act unconstitutionally. What must we think after that declaration, that he is going to act in the teeth of the Constitution and no matter what his lawyers will tell him? He will consult them. If they agree with him they will be right, but if they do not agree with him they will not be right. This may be an important question in the future when the Taoiseach is a candidate for the Presidency.
The purpose of this amendment is to ascertain the precise meaning of the two clauses here. We have heard of the desirability of having a clean copy. The Taoiseach does not want, apparently, to have a thing of rags  and tatters, so much talked about, presented to himself. One can well understand from the background why he is so anxious about that. The text that has been passed has to be revised by the Taoiseach. Then it must be signed by the Uachtarán and, as the Constitution stands at the moment, it must be signed by the Chief Justice. The whole initiative lies with the Taoiseach. When it goes in that form, even though it may be something that would excite the anxiety of the Uachtarán, if he has a right to be anxious about anything, and even if it is a text which the Uachtarán does not think is a conclusive text, still, once it is signed, it supersedes everything previously enacted. Why not let the courts have the interpretation of the text? There are people there accustomed to striking out passages and inserting substitutions. Let them have the authentic text as passed by the Oireachtas and not some revise that is done outside.
Professor O'Sullivan: Apparently the object of the Taoiseach is to have a popular document that will be suitable for the ordinary man in the street. I understand that is the main purpose. I suggest that purpose could be served without giving it any binding and legal force. When the text goes to the court the judges and lawyers will give it careful consideration and a proper interpretation. The man in the street will have what the Taoiseach might describe as a clean copy, and the judges and lawyers will deal with the text as passed by the Oireachtas.
The Taoiseach: It would be a very useful thing if we could extend this so that we could have at each particular time a continual process of getting clean texts, and have at the same time a type of consolidation.
What he has to have prepared is an authentic text of this Constitution as it is then in force, the amendments having been taken full account of—that is, the deletions and insertions properly carried out.
A copy of every text so prepared shall be signed by the President and countersigned by the Taoiseach and the Chief Justice and, when so signed and countersigned, shall be enrolled for record in the office of the Registrar of the Supreme Court.
Once the copy is prepared it has of necessity to be signed. That was not the intention. As I read it, it would appear to have the interpretation which has been put upon it by Deputies on the other side—that is, of necessity this would have to be signed. That was not the intention. The intention was that the signatures were to carry with them the assurance of the people who signed that the text was what it purported to be, namely an authentic copy of the Constitution as then in force. I will have it examined to see if it can be amended to make the matter quite clear.
The copy so signed, countersigned, and enrolled which is for the time being the latest text so prepared shall, upon such enrolment, be conclusive evidence of this Constitution and shall for that purpose supersede all texts of this Constitution of which copies were previously so enrolled.
Mr. McGilligan: You might be dealing with a piece of legislation passed  by one method. Take what happened where the first amendment was passed only in English. Supposing that happens again, it is lawful for the Taoiseach to prepare a new version of the Constitution, translate it into Irish in a Bill passed only in English, and then the Uachtarán and Chief Justice must sign that, and that becomes conclusive.
The Taoiseach: If we can get clear as to the intention, it will be a question then of expressing that in such a way that there will be no doubt. I hold that is the wise thing to do. The intention is that when amendments have been passed, with deletions, that it shall impose upon the Taoiseach a duty. That is an assurance that the text does what it purports to do to the Constitution then in force. Before each is enrolled and regarded as conclusive evidence of the text, it shall have to be signed by the Taoiseach on the one hand, and the Chief Justice on the other hand, and should have the signature of the President. The question is at what stage the President's signature is to be obtained, whether it should not be properly signed by them as being authentic, and then signed by the President.
The Taoiseach: It would probably be better to express it that the copy should be authenticated by the signature of the Taoiseach and then by the President. Probably that would be the better procedure.
Mr. McGilligan: In endeavouring to carry out that, would the Taoiseach advert  to this, that the language is rather odd? All that is intended is to have a revised version without making a solitary change. I suggest that the language is open to ambiguity. The second question is whether it is clear that the Uachtarán, in addition to the Chief Justice, is to be given some discretion; or if it is intended that he is tied under the Constitution. At times he is thrown on his own discretion, but when anything is said he must act on the advice of the Government. If he was presented with a text that was flagrantly bad, and advised by the Government to sign, he must sign.
“It shall be lawful for the Taoiseach, from time to time as occasion appears to him to require, to cause to be prepared under his supervision a text (in both the official languages) of this Constitution as then in force having regard to all amendments theretofore made therein.”
The Taoiseach: Supposing there was a slight amendment and that a copy had been enrolled a short time before, it might not be considered necessary or advisable to get a slight amendment made, and the Constitution might be left without presenting it in another form plus the amendment. “From time to time” is the widest term you could have in giving discretion as to whether it was called for in a particular instance. It is clear that if there were a number of amendments as at present a clean text would be advisable. After passing an amendment like this it would be advisable to have a clean text. It might not be done for a small amendment which would not cause any confusion and which could be read with the main text.
The Taoiseach: Not on the revised one before it comes before the Dáil. Nothing can appear in that text except something that has been passed by the Dáil or that is otherwise an amendment properly made by law or by the Referendum.
The Taoiseach: Under the existing text of Article 26 (1) 2º the reference of a Bill or a provision thereof to the Supreme Court for a decision as to whether it is repugnant to the Constitution must be made not later than four days after the date on which the Bill is passed or deemed to have been passed by both Houses of the Oireachtas. In practice, it frequently happens that a Bill is not presented to the President until a day or two after it has been passed, and the time for consideration of the question of a reference to the Supreme Court is thus unavoidably encroached upon. In order to give the President the maximum time for consideration of the important question of a reference to the Supreme Court and to allow time for the convening of a meeting of the Council of State, it is proposed to extend the period to the seventh day after the date on which a Bill is presented to the President for signature.
The Taoiseach: Reference No. 14 deals with the same matter. The time begins to run from the time of presentation by the Taoiseach and not from the date on which it was passed. It gives further time to the President.
The Taoiseach: It may happen that a day may intervene. In connection with ordinary legislation, a clean text has to be prepared. Somebody has to provide a clean text and see that the document presented for signature is after it is passed?
The Taoiseach: In practice, there has to be a clean text prepared, and that takes time. Suppose we had a meeting here until mid-day on Saturday, at which a Bill was passed. Last minute amendments may be necessary, and a clean copy has to be prepared. There is a possibility of a day or a day and a half intervening. “As soon as may be” is the interpretation of the phrase, in practice.
The object of the proposal in the Bill is to ensure that there shall be only one judgment delivered by the Supreme Court. Article 26 provides that, on the reference of a Constitutional matter of this kind to the Supreme Court, the decision of the majority of the court is to be the decision of the court. It is now proposed that there shall be only one judgment. I recognise that the proposals in the Bill are in accordance  with what actually happened in the Supreme Court on the occasion of the reference made some time ago, that, in fact, only one judgment was given, but it was announced by the Chief Justice, in delivering the judgment of the court, that the judgment of the court was the judgment of the majority. That, of course, was in accordance with the provisions of Article 26, but it gave rise to a considerable amount of speculation as to whether or not the judgment of the court was, in fact, unanimous, and I think that most of the speculation developed rather into certainty that there was one or perhaps two of the judges of the court who had not the same view as the majority.
I assume that the reasoning on which this amendment is put forward is analogous to the reasoning on which only one judgment of the Court of Criminal Appeal is given in a case where an appeal is taken on behalf of a person convicted of an offence and the appeal comes before the Court of Criminal Appeal. The reasoning underlying that particular practice, as I understand it, is that it is undesirable that there should be any doubt as to the validity of a conviction and sentencing of a particular individual, and, therefore, when the matter comes before the Court of Criminal Appeal, if there is a division of judicial opinion, it is deemed not to be desirable that such a division should be made public, although, in fact, if such a division does occur, it is pretty apparent in the course of the argument in court how the conflict of judicial opinion is likely to lie. I think I am right in saying that the reasoning in relation to the Court of Criminal Appeal practice is the reasoning on which the present amendment and the practice adopted by the Supreme Court on the only reference so far made to it under Article 26 is based.
I do not agree that it is desirable that there should be only one judgment in a matter of this kind. It is clear from the Article of the Constitution that it is the majority judgment of the Supreme Court which is to prevail. Everybody will know in a case which involves public interest whether or not a particular judge or judges of the  Supreme Court, in the course of the argument, were inclined to adopt a particular view which may not be the view which ultimately prevails, and that will lead to rumour and speculation. I think that there will probably be more doubt cast upon the ultimate decision than if each judge were to give a judgment on his own in accordance with this amendment of mine and Deputy McGilligan's, because very often in the course of argument in court, a particular judge, for the purpose of clearing his own mind, puts a point to counsel arguing the case which, if taken at its face value, might appear to indicate that the judge is against the contention which the particular counsel is putting forward, whereas, in fact, in very many cases, what he is really doing is testing the argument by putting arguments against those being put forward by counsel. But if, in the course of consideration of whether or not a particular Bill is constitutional, that practice is adopted by a particular judge, and subsequently it is announced that a decision of the court is a majority decision, speculation will arise as to whether that judge dissented from the majority judgment of his colleagues, and it may very likely be that he is one of the persons who has concurred in the majority judgment and, of course, there will be speculation as to whether A, B, C, D, or E constituted the majority.
That particular point is not, I think, of any great importance. It is a matter that should be considered and weighed in determining whether the balance of public right or public convenience is better served by having one judgment or five judgments. I think it must be faced that in this country there is very little interest in constitutional matters, even amongst the professional people. In the course of time, I presume that, in our law schools, the students will get a pretty good schooling in constitutional law and in the provisions and implications of our Constitution. It will be a necessary part of the training, I should imagine and hope, of every one of our law students of the future. I do think that there is a much better chance and  opportunity of having greater interest in constitutional matters and greater appreciation of constitutional affairs if, when a Bill is referred to the Supreme Court for its judgment, there should be made public the different considerations which weighed in reference to the matter with the different members of the Supreme Court. Two judges may take a different view from that of their colleagues, and, if each of these judges sets down in writing his own views on constitutional matters, they will be a subject for study by students and by the professional men engaged in court, and, in the course of their business, it may be necessary, in considering the decisions of the Supreme Court, not merely in reference to the particular Bill but in reference to future Bills, to have before them the various reasons that impelled each of them to come to the conclusion to which he came. The Taoiseach will, probably, agree with me that an opinion is only worth the reasonings on which it is based. You can only get good reasoning, in my view, if you have a man sitting down and giving his opinion in the open, or giving his reasons in writing at least, for the conclusion to which he has come. A person in considering a particular constitutional problem can come to a conclusion by instinct as to what the proper construction of a particular Act is. He may say that it means so and so, and what is the use of arguing about it. If he has to sit down and give reason after reason, which will be the subject of consideration by constitutional lawyers not only here but elsewhere, he will take much more care before coming to a conclusion. If he knows that his judgment will be scrutinised in this way, then he will take more care than he would if he has merely to concur. I think there would be much more interest in constitutional matters, and that the cases which come before the Supreme Court would get far greater consideration if each judge were bound in open court to deliver his judgment. Nobody will accuse me—least of all, I think, members of the Supreme Court—of making reflections upon that court, but I do urge that the matters I have referred to require consideration.
 I have no particular interest in urging this amendment save a belief in the points which I have raised. If each judge has to give a written judgment, you are likely to get a better judgment than you will if one man delivers the judgment. The individual who delivers the judgment will be endeavouring, in some cases at all events, to give a sort of common form to his judgment. If there is disagreement, he will be endeavouring to deliver his own judgment and the judgment of those colleagues who agree with him. That may be of interest, but I do suggest that it is of less interest than if the five judges gave judgments stating the reasons for the conclusions to which they came. That would lead to greater interest in the subject matter and to development of Constitutional thought. It would afford greater education to students of Constitutional law than would one judgment which may be, on occasions, laconic and not deeply reasoned. The law students, so far as Constitutional questions are concerned, will have to rely on the text of the Constitution. They would get a wider education on Constitutional law and its implications if they had judicial judgments on which they could rely. These judgments would stimulate their own thought and provide them with a wider knowledge of Constitutional matters than they would have from the mere reading of the text of the Constitution and bald judgments by a single judge upon it. For these reasons, I think this amendment should commend itself to the Taoiseach.
The Taoiseach: In an early draft of the Constitution there was a provision such as this but it finally disappeared. I have not been able to find how it got out. The original proposal was that there should be only one judgment, and it is quite true to say that the analogy with the Court of Criminal Appeal had something to do with that. It is desirable in the case of the Constitution to have finality, and it is thought that this will be best secured by a single judgment. From an educational point of view, the proposal stressed by the Deputy would, no doubt, be valuable but, after all, what do we want? We  want to get a decision as to what the Constitutional position is in regard to a particular matter. The more definite the position is the better and, from the point of view of definiteness, it is desirable that only one judgment should be pronounced. The speculation referred to will go on. That cannot be helped. I have heard lawyers who were pleading before judges arguing as to what view certain judges were likely to take, having regard to their attitude during the hearing of the case and the questions put by them. I found that these lawyers were wrong as often as they were right as to the view taken by particular judges.
The Taoiseach: When a single judg ment is given, nobody will know what was the ultimate view taken by any of the judges. Even if a judge puts questions which suggest that his mind is moving in a certain direction, these questions may be put merely to clear his own mind and they are not an indication of the point of view which he may take. I have no doubt that, very often, a judge is converted from his own view to the views of his colleagues when he sits down with them to consider the case. This speculation will not, therefore, amount to anything. It will, certainly, not be a cause of disturbance. The important thing is that there should be no doubt about the decision. It was suggested here on one occasion by a Deputy that because judges of the Supreme Court were divided on a certain point of view there was as much to be said for one contention as for the other and he tried to show that the position was one of uncertainty. We want to have these decisions as certain and definite as possible. Cases may arise in which the public interest would be badly served, indeed, if doubt were thrown on the final judgment. While I am willing to admit the value of the other procedure from an educational point of view, I think that, from the point of view of the public interest, it is better to have a single judgment pronounced and no indication given that other judges held a different view. I do not know to  what extent the judgment would, in itself, be an educative document in contrast with a series of judgments.
I am not sufficiently acquainted with the practice to form any definite opinion on that. I certainly would not presume to think that my opinion on the matter would have the same weight as the Deputy who has spoken. The one thing I am looking for, and which I think we ought all to look for here, is that there should be a definite decision; that it should not be bandied about from mouth to mouth that, in fact, that decision was only come to by a mere majority of the Supreme Court. Then you would have added on, perhaps, the number of judges who dealt with the matter in the High Court before it came to the Supreme Court, as might happen in some cases. You would then have an adding up of judges and people saying: “There were five on this side and three on the other, and therefore the law is the other way.” That would be altogether undesirable. While there might be advantages on the other side, I think, on the whole, we ought to keep it here to a single judgment.
Mr. McGilligan: The aim here is quite a simple one; in fact, what is to be achieved is quite simple. We are dealing only with Article 26. The one question to be posed to the court and answered is: “Is the proposed measure repugnant to the Constitution or not?” There must be a clear-cut decision on that. There can be no question about the decision. But the reasons for the decision are considered very valuable. In other situations it might be possible to count the heads of judges and say that there were so many in the High Court on one side and so many in the Supreme Court. But this is a case that will only go to the Supreme Court consisting of five judges. There must be a decision, and any decision in the end has to come down to what each judge's opinion is on the point: is the proposed measure repugnant to the Constitution or not? That is a simple and clear issue. This proposal about judges delivering different judgments might have  application elsewhere. It is possible for people to say that there were three judgments in the High Court, two on one side and only one against, and that in the Supreme Court the decision was reversed by three to two.
You have the peculiar situation that speculation will still go on. We gain nothing by a pretence of unanimity by this device. It is a complete falsification as far as reality is concerned. The situation is still there. People will hear the judges asking questions of counsel. In the main, it is easy to know when a judge is putting a point because he wants it cleared up and not because he accepts it. A point put by a judge because he believes in it is generally one which is tenaciously adhered to. It is easy at most times to calculate whether a judge is radically in disagreement with his colleagues. As to this pretence about having one judgment delivered, those who are in court or who hear about it will be able to form an idea as to the situation. The issue is decided. Three judges must determine whether a Bill is repugnant to the Constitution or not. There are the two positions. On the one hand, there are people who think that there is value in having what is called a clear decision. There are people who think that there is some value in having the pretence that a clear decision is arrived at by the whole court. You are not going to get anything more than a pretence. As against that, there is the decided advantage to be got, as any practitioner knows, from having judges canvassing points of view and indicating the strong points that have weighed with them in coming to the final decision, whether the Bill is or is not repugnant to the Constitution.
My colleague referred to the lack of enthusiasm and interest in Constitutional matters. One of the difficulties in speaking to students about Constitutional matters is that there have been so few cases thoroughly canvassed in court and so few occasions on which judges have given a point of view about particular Articles in the Constitution. What field could be more fruitful of argument and expression of points of view than this, where some piece of legislation is referred to  them to know whether it is or is not repugnant to the Constitution; where you may have a great many Articles brought into the argument, fine points revealed, and a decision taken? We in this country are still in a system in which we believe in argument and that things are carried through by reason. The only way in which you can get a measure commending itself to the public is when you get a clash of points of view among those who have to decide the matter; not merely a statement that somebody agrees and somebody disagrees, but the reasons why a judge has accepted the final decision that it is repugnant to the Constitution or a judge has accepted the decision that it is not repugnant to the Constitution. There is a big field open and it is a pity that on this, one of the few occasions on which there is a possibility of getting enlightening material, not only for students but legislators, it should be closed by this pretence of having unanimity when everybody will know there is no such thing.
Mr. Costello: The Taoiseach's remarks brought back to my mind a theory that was held by one of the writers in jurisprudence which I learned in my student days—that it was better for the law to be certain than just. Apparently, the one thing that the Taoiseach wants is to have certainty. This particular school of jurisprudence apparently thought that certainty was even a higher virtue than justice. The Taoiseach, I think, by his proposals will attain neither certainty nor justice. The British common law,  which I think everybody will recognise as of enormous importance from the point of view of a juridical system, developed from judge-made law and, I think, if the Taoiseach got some of his legal advisers to spend such spare time as they may have looking up the number of times that dissentient judgments were the foundation of subsequent legal reforms he might have a different view from the one he has at present. Certainly the dissentient judgments in various branches of the law have been the bones on which students, so to speak, metaphorically sharpened their legal teeth. A dissentient judgment on Constitutional matters may be as valuable from the point of view of Constitutional theory and the stimulation of Constitutional thought as the judgment of the majority; in fact, sometimes it may be very much more valuable.
The Taoiseach, of course, is looking at the problem, if I may say so without any suggestion of offence, from the position at the present moment. But it might be that in future times a majority judgment of a court might not be such as to be really conducive to the public interest. Supposing there were on some future Supreme Court a majority of judges who took, say, a particular type of view of a Constitution. Their judgment in all good faith might have very serious results. The Taoiseach will probably realise that, in the approach to the interpretation of a Constitution, a number of minds may take different views. We may take the view that the Constitution is nothing but a statute and bring to the consideration of any problem arising out of the Constitution the same rigid ideas of interpretation as are usually brought to the interpretation of a statute.
Now, if that particular mentality at any particular period prevails, certain results inevitably follow. But, on the other hand, if, by some fortuitous circumstances, three judges get on the Supreme Court, all of whom have a particular type of mental approach towards the interpretation of the Constitution, the basis of which is a liberal interpretation, to regard the Constitution as something setting down headlines  rather than as being merely the equivalent of an ordinary Act of Parliament, and that it is, therefore, a document which requires an approach to its interpretation entirely different from the approach which a judge brings to the interpretation of an Act of Parliament, then in that state of facts an entirely different construction of the same document will be given. It may be that a rigid interpretation of the Constitution, based on the rigid canons of legal interpretation, suits a particular situation at some time, but in another situation later on, when a more liberal method of approach to constitutional interpretation is in vogue, it will produce an entirely different result. It will produce a certain result, the certainty that the Taoiseach requires, the certainty which a particular Government at some time may not like.
My interest in this arises from my interest in constitutional matters. I do happen to have some interest in constitutional matters. The Taoiseach will not misunderstand me when I say that even among lawyers there is often very little interest in constitutional law and constitutional matters. I think that the stimulation given to legal thought and legal theory from differences of opinion is extremely valuable. You are shutting out that stimulation to legal thought, legal theory and constitutional theory if you shut out from the consideration of constitutional lawyers and constitutional students the different ideas given, even in concurring judgments, on something affecting a vital matter in the Constitution. It is, I think, very valuable, even where three judges concur, to have their judgments, to see for what reasons each of the three came to the concurring judgment.
Judges very often arrive at the same conclusion by widely different roads. Even if you were only to give the concurring judgments, and to leave out the dissenting judgments, a considerable advantage might be gained, but, in the proposal as it stands at the moment, you are getting what may eventually amount to a mere “yes” or “no” The result of this may be that  some future Supreme Court may say: “Our job is to give a ‘yes’ or ‘no’ answer, and it would be undesirable to give the reasons for that; therefore, when we are put this question, we always say ‘yes’ or ‘no’.” You get there great certainty. You also get something that may be productive of very great damage to the Constitution, and to the constitutional position.
The Taoiseach, in his effort to get certainty, to avoid, as he says, speculation, and the counting of heads may, I think, rather lead himself into the position that he is desirous of avoiding. I had the somewhat unique experience of appearing in a case in the Supreme Court where there were, I think, five judges. As far as I could hear, the whole five decided against me, and yet, by adding up the different parts of their judgments my client ultimately won his appeal. That was a very interesting case from many points of view. Such a thing might occur in a constitutional matter. Five different minds are going to bear upon a problem. They arrive at their conclusion by various roads. The reasons for their arrival are, I think, of vital importance. I have no particular interest in urging this upon the Taoiseach except the one that I have already given, namely, that I am interested in constitutional matters.
The Taoiseach: I am willing to concede to the Deputy that he has made a very excellent case for the amendment from the educational and, if you like, the intellectual point of view. There is a great deal to be said for the point of view he put forward about stimulus to thought and so on, but that is not the purpose of sending a case to the Supreme Court. If it were possible for us to get language which would be absolutely unambiguous, about which no group of two or three people could fail to come to the same idea, that would be the ideal to aim at. It would be the ideal type of Constitution in the sense that there could be no speculation as to what it meant: that the meaning one took from it was the only meaning that could be taken from it. That would be the ideal document from my point of view, but it might be a very unsatisfactory document from the point of view of the lawyers, or from  the point of view of intellectual or mental exercise. From the point of view of the Constitution, what we want is to get a decision and not to have individuals trying the matter out again for themselves. What we want to arrive at is the decision: “This is the law and that closes it.” I am anxious, when that has been decided, that there can be no further argument about it. If the decision leads to public inconvenience then, as in the case of any other law that leads to public inconvenience, the Legislature will have to take steps to amend it. The Deputy engaged in a very interesting—I do not like to call it a game—mental exercise, in a speculation on the meaning that could be taken from phrases according to one's approach to them. That is not what we want. First of all, if it were possible to have a Constitution which would not be questioned in court at all —that it would be regarded by all as being so clear that anyone reading it would have no doubt about it—that, of course, would be the ideal position. The next best thing is that when the matter is raised in court there should be a decision, and that that decision should be regarded as final.
The Taoiseach: I agree. It may be all very well for the Deputy, who is a lawyer, to say: “These are the arguments in this way and these are the arguments in that way. If I were one of the judges I would balance them in this way and give a decision differently. The fact is, there are five men who have been charged with the responsibility of giving a final decision. The majority have come to a particular decision, and that is good enough for me.” It may be all right for the lawyer to take that view, but, on the other hand, the average citizen may feel that, because there was another interpretation possible, he has been aggrieved and, consequently, he is not prepared to take the legal view of what the decision means. I think that from the point of view of public advantage, the advantage lies in the single judgment. I am not going to go further into the arguments that were put forward in support of the amendment. I  appreciate and understand fully the arguments that were put forward from the other side.
Mr. McGilligan: I do not think any argument is going to prevail with the Taoiseach. We have in this two radically different attitudes, two schools of thought. The Taoiseach now stands forward as a protagonist against intellectual exercise.
Mr. McGilligan: The absence of exercise means either of two things: that a person is lazy, or that a person is going to get very flabby. I think there are people in the background of this Constitution who have, in fact, accepted the cloistered life. They do not want anything but security.
We must recognise only two divisions of people. There are people who rejoice a little in the hurly-burly of practical affairs of life and practical affairs of law and would rather see advancement even though it may mean that people may question a decision in the courts. There is a valuable point of view in opposition to this—the point of view that through, exercise you get growth and that applies mentally as well as physically.
The Taoiseach: I am quite willing to concede all that and quite willing to understand that there are two schools, but I believe there is enough left in life and in law still to give opportunity for intellectual exercise.
The Taoiseach: It is not a question of pretence. The Committee on Procedure and Privileges, I understand, met and decided that the text should be arranged in that way, in order that it would include the texts in both languages, as we are working on the basis of the two texts.
Professor O'Sullivan: I admit, though it is almost fantastic, that the Taoiseach did, for once, see the point of view of the Opposition and accept the amendment. Deputy McGilligan put down an amendment and what he put down would not be the Government text but what somebody translated for him.
Mr. Costello: The amendment was put down for the purpose of getting an explanation of reference No. 16. I do not know why it is necessary to have an amendment of the Constitution to say that another Article of the Constitution shall be complied with.
The Taoiseach: Let me explain the position. Those two amendments, Nos. 16 and 18, taken together, provide for the possibility that a Bill referred to the Supreme Court under Article 26 may be the subject of a petition for reference to the people under Article 27; that is, both Articles 26 and 27 may concurrently apply. Should this happen, the President will have power to defer the reference of the Bill to the people until the Supreme Court decision has been given, so as to avoid the possibility that the Bill may be referred to the people, and then referred to the  Supreme Court and found to be unconstitutional. The Supreme Court reference comes first.
If the Supreme Court decides that the Bill, or any provision thereof, is repugnant to the Constitution, the President must decline to sign it, and the question of reference to the people under Article 27 would no longer arise. If, on the other hand, the court decides in favour of the Bill, the President can then consider whether it contains a proposal of such national importance that the will of the people thereon should be ascertained. One is a question of legality and the other a question of importance in regard to its being put before the people or not. The President will have six days after the date of the court decision in which to make up his mind. Originally, there was the possibility that there may be a Bill of a very important character, and two questions in connection with it— the first, whether it is Constitutional: that would be a matter for reference to the Supreme Court; the next, whether it is of such importance as to need reference to the people. The first thing is to have the question of the constitutionality decided on, and that would be done by the Supreme Court. When it gets back, the President has to consider the other question.
Mr. McGilligan: The petition must be put in within four days after the Bill has been deemed to have been passed by the House, so the petition must have been lying there while the Supreme Court was deciding.
The Taoiseach: Yes. If the petition has come in, he would have to act on the petition within a certain time—six days—then the time for action would have passed while the Supreme Court would be deciding it. What is here is that the time is extended, so to speak, so as to enable reference to the Supreme Court and a decision to be obtained from them.
Mr. McGilligan: I think that the time points in Article 27 still remain; that is, within four days after the Bill is deemed to have been passed by both Houses of the Oireachtas, a petition, if any, must be presented and under Section 3 of Article 27 the President  must consider it and must pronounce a decision within ten days. He can do that while the petition is lying with the Supreme Court. I do not think there is any amendment that changes those times. I understood the reason for the amendment was that Article 26, as it stands, says that if the Supreme Court say the Bill is repugnant the President shall not sign it. There seems to be a peremptory flavour about the sub-section which says that he shall sign it. In other words, reading Article 27, if it were only a matter of enlarging the time, it would be necessary to make that clear.
“2º If the Bill or any provision thereof is or has been referred to the Supreme Court under Article 26 of this Constitution, it shall not be obligatory on the President to consider the petition unless or until the Supreme Court has pronounced a decision on such reference to the effect that the said Bill or the said provision thereof is not repugnant to this Constitution or to any provision thereof, and, if a decision to that effect is pronounced by the Supreme Court, it shall not be obligatory on the President to pronounce his decision on the petition before the expiration of six days after the day on which the decision of the Supreme Court to the effect aforesaid is pronounced.”
Mr. McGilligan: In other words, even although, as was done in the case of the Offences Against the State Bill, it was announced clearly that the Bill was one that was thought should be referred to the Supreme Court as to whether it was repugnant or not, nevertheless, if a majority of the Seanad and one-third of the Dáil  decide that it is a thing they ought to present a petition about, they, although the Supreme Court may in fact declare the Bill to be unconstitutional, are still put to the trouble, inside four days from the Bill having been passed, of getting a petition?
Mr. McGilligan: If you are going to amend the time for the Uachtarán, why not amend the time for the petition and have the four days run from the day the Supreme Court has decided that the Bill is Constitutional?
The Taoiseach: The only question is, is it necessary? Quite irrespective of any action that the President may take with regard to its constitutionality, there is this question which is the one about which the petition is to be made; it is an independent question. The group may say, “We do not know what the position may be or what attitude the Government may take with regard to the constitutionality of this, but clearly to us it is a question of such importance that it ought not to be passed here without reference to the people or become law without reference to the people,” and they put in a petition on the basis that it is an important matter. I think that would be the primary thing in their minds. It would be quite a secondary and incidental thing if they advert to the question of its possibly not being in accordance with the Constitution.
The Taoiseach: The stimulus to their action should come immediately the Bill is passed through the two Houses. The petition is originated by members of the two Houses. We presume those who will sign the petition have been fighting against the measure. They are wroth that it is passed. They immediately say: “This is a shame; this is a thing that ought to be referred to the people, we will put a petition to the President.” The petition comes along. The President looks at the Bill from two points of view. First of all,  he looks at it from the point of view of its constitutionality and, secondly, from the point of view of the petition. Both of these aspects will have to be considered by him. If there is a question of its constitutionality he gets that settled first. But it is absolutely necessary to lengthen the time for him.
Mr. McGilligan: I believe the real reason is here, but I want to find out if I am right in thinking the real reason is here: why should not the Uachtarán decide inside the ten days, even while it is pending before the Supreme Court, that it is a Bill of such importance that the will of the people ought to be taken on it?
Mr. McGilligan: And why should you put the majority of the Seanad and one-third of the Dáil to the trouble of getting a petition about a measure that may be declared unconstitutional? May I suggest the reason—I thought it was the reason—that it may be an awkward thing to have the Uachtarán decide that a Bill in his mind is not one of such importance that the will of the people should be taken on it and the Supreme Court then decide it was unconstitutional. That would be a peculiar position.
Mr. McGilligan: That the Bill was unconstitutional, although the Uachtarán, aided by his Council of State, might have said: “If they pass it, I do not think it is of such importance to warrant its going to the people.”
The Taoiseach: There are two things to be done and, whatever other considerations there may be, common sense dictates, and the main thing is that he should not go and submit to the people a Bill which in fact was unconstitutional.
Mr. McGilligan: I am trying to put it briefly. Machinery is here in the Constitution for having Bills referred to the people. That machinery has to be started by a group of people, not less than the majority of the Seanad and one-third of the Dáil. That Bill about which they may seek to move that machinery is one that may be also referred to the Supreme Court for decision as to its constitutionality. Although it is going to be referred to the Supreme Court, nevertheless, you insist that that group of the representatives of the people will get moving and get a petition and send it to the Uachtarán within a certain time. It has gone to that stage. What is then to happen? You have put a whole lot of people to a considerable amount of trouble. The next step is that the one individual whose main function is to do this sort of thing, has to call the Council of State and say whether this is of such importance that it ought to be referred to the people. You will not bother him until you see whether the Supreme Court decides as to its constitutionality, but you will bother the majority of the Seanad and one-third of the Dáil. I think, if you are going to enlarge the time for the one, you ought to do it for the other. You ought to say: “This Bill is going to be referred to the Supreme Court. After their decision has been pronounced then your four days and 10 days start.”
The Taoiseach: There is this question, as the Deputy knows. Suppose a Bill is going through. Members of the Oireachtas are talking about it and taking an interest in it for the time being. If there is a period elapsing in which there is a decision of the court, they may not all advert to it and it may be difficult to get the necessary group. They are on the spot at the time the Bill is passing through. They are on the spot immediately after its passing and it is much easier to get a petition signed. In all these cases there will be some people who will take the initiative and get the thing done. It is much easier to get it signed immediately after than it would perhaps if they were down the country.
Mr. McGilligan: There may be implications to the measure which will only emerge when the Supreme Court get to considering it. Refinements may be brought out in argument before the Supreme Court and the group necessary to get the machine moving might say: “This is dangerous. We will get the will of the people on it.”
The Taoiseach: That is a point, all right. As far as I would judge it, it is the only one that has been put forward that would suggest a reason for the change but, even there, is it likely that something that occurs in the case as pleaded before the Supreme Court is likely to indicate its importance as a measure? Surely its importance as a measure, from the point of view of the welfare of the people, will already have emerged in the discussion in the Legislature? I think it is extremely unlikely, and I think it would be hardly worth our while to change it on that account.
Mr. McGilligan: Take the example that is glaring. Did anybody believe before the Offences Against the State Act went to the Supreme Court that there was likely to be a decision which in fact—I suggest this in a general way —had the result of obliterating the Constitution and making it subservient to law? That is the full effect of the result of the Offences Against the State Act. I do not think the point was adverted to, when this measure was passing through the Dáil, that a piece of legislation, as long as it is properly passed, could override the Constitution. I think if that point had been adverted to there certainly would have been an appeal.
Mr. McGilligan: I am making that general statement as a true statement with regard to the effect of that decision. However, let it be, for the moment, admitted that this may be taken as an exaggeration, but supposing that was the effect of the decision and that it became clear, in the course of a court argument, that that was implicit in the legislation passed, would  you not get a considerably greater number of people moved and stirred up about it than by the ordinary humdrum matter of the passage of a Bill?
The Taoiseach: Well, I do not think you will have this humdrum passage about a Bill of that sort. However, again, I am quite prepared to give the matter further consideration with a view to seeing what would be the consequences of giving the four days after the decision. From the point of view of convenience, of ordinary convenience, I should say that it should be let stand as it is, but I shall consider the point put forward by the Deputy, to see if it is sufficient to make it desirable to have four or five or six days running at the same time.
The Taoiseach: With regard to reference No. 17, what is in existence in the Constitution is that a petition by a majority of the members of Seanad Eireann and not less than one-third of the members of Dáil Eireann may be addressed to the President under Article 27 requesting him to decline to sign and promulgate as a law any Bill to which that Article applies on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained, and so on, and the amendment enables legislation to be passed dealing with the verification of the signatures of the petitioners. That is, some procedure will have to be worked out.
Mr. McGilligan: And again we are  bringing the Constitution under the sway of the law. It may be the case that the law might make it impossible to get the signatures. The phrase in clause 2 of Article 27 is: “in writing signed by the petitioners”. Why is not that satisfactory?
Mr. McGilligan: I should say that those who want a Referendum are definitely precluded hereafter by the four days that are mentioned. There are only four days in which to get the group together. Has the Taoiseach considered the difficulty of getting the signatures of a majority of the members of the Seanad and not less than one-third of the members of the Dáil in four days?
The Taoiseach: That is the one we have been discussing in the sense that it shall not be obligatory on the President to pronounce a decision on the petition until after the expiration of six days from the day on which the decision is given.
The Taoiseach: As to reference No. 19, the point there is that in paragraph 1 of Section 4 of Article 27, there is the question of a proposal contained in a Bill, and not the Bill itself, that is to be referred, and in paragraph 2 of the Article, the implication is that it is the Bill that is to be referred. The amendment is designed to remove that implication, and to set out in definite terms that it is the proposal contained in the Bill, and not the Bill itself, that is to be referred to the people.
Amendments Nos. 35, 36 and 37 are put down here in order to clarify certain things in connection with the Constitution. I do not like to use the word “clarify” continually, but I have some doubts in regard to the Constitution. We are dealing here with the part of Article 28 of the Constitution which allows the Constitution to be suspended, and the phrase that is in sub-section (3), Section 3, of Article 28, is: “Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion.” What I want to ask is, what is the repercussion of that phrase “in time of war or armed rebellion?” Is it that nothing shall be invoked in time of war or armed rebellion that would invalidate an Act passed by the Oireachtas, or that nothing shall be invoked at any time that would invalidate any law enacted by the Oireachtas in time of war or armed rebellion, or is it simply that nothing in the Constitution can be invoked at any time to invalidate any law, even before a war has broken out?  Which of these positions is intended to be the true one, I do not know. Perhaps I might put the doubt in another way. Does the phrase “in time of war or armed rebellion” govern the whole clause or just the particular piece of legislation which, even in the piping time of peace, is expressed to be for the purpose of securing the public safety and the preservation of the State, or are you merely prevented from invoking the Constitution in time of war or armed rebellion? Or again, is the position that what you found yourself upon is a piece of law enacted during a time of war or armed rebellion? I should like to have some direction on this matter.
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in pursuance of any such law.”
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in pursuance of any such law.”
I think that is the most general way in which you can have it, namely that the law has to relate to a time of war or armed rebellion and the Constitution cannot be invoked for the purpose of nullifying anything done under that law at any time. We have to consider the question of a law which is passed in advance of the time for which it is  intended. Suppose a law is passed and related to acts at that particular time, I take it the law will hold during the time at which it is passed, even though it is intended to operate during a time of war.
The Taoiseach: I take it that is the interpretation as it stands. After the war is over, you cannot invoke the Constitution to prevent the passing of an Indemnity Act if a question arose of indemnifying officers in respect of acts of good faith done during the period of the war. I think if the amendment which the Deputy has suggested were adopted it would be narrowed to such a point——
Mr. McGilligan: I put the amendments down merely to find out what was the exact impact of this phrase on the suspension of the Constitution. I gather now that it is intended to have the widest possible reference.
Mr. McGilligan: Say that after the Munich crisis this country made up its mind that a war was coming, it could have, in the month of January, 1939, passed legislation expressing that to be for the purpose of preserving this country in a time of war. Say that it ran the gauntlet of this House and that it was passed by the end of January, 1939. Although the war did not break out until September, 1939, nobody as between January and September could have gone into court to raise the Constitution as against anything done under that law.
Mr. McGilligan: Suppose something were done in preparation for a time of war. Suppose an Emergency Powers  Act were passed and that this Act was expressed to be for the preservation of the State in time of war. One of the things put into the Emergency Powers Act was to allow the Minister—it is rather ironic to think of it now—to gather in supplies for a time of emergency. All that could have been done under the Emergency Powers Act passed in January although the war did not start until September. I want to know if that is what is intended.
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion——”
The Taoiseach: ——“or to nullify any act done or purporting to be done in pursuance of any such law.” Although I have not had the advantage of a legal training, I would be inclined to agree with the Deputy that the widest possible interpretation should be given to that. I may be wrong but I shall find out what is the legal opinion on the matter.
Professor O'Sullivan: I would imagine that the intention was that you could pass an Act at any time to guard public safety under certain conditions but that you could not operate this Act until the emergency arose.
Mr. McGilligan: The pivot of the whole thing is that the law carries its own justification on its head. If there is a preamble to say that it is an Act expressly for the purpose of preserving the State, and if you pass it months ahead of a time of war, then you can immediately proceed to take land or to confiscate property under it.
Mr. McGilligan: I have put down these three amendments to find out how it is intended to operate legislation of this kind from the passing of the Act. I want to find out what is intended. Depending on what is intended, other amendments may be required.
The Taoiseach: I shall try to get definite legal advice but if I were to interpret it myself, I would be inclined to say that if you pass an Act in advance of a period for which it is intended, and if there are measures which should be taken in advance of that period——
Mr. McGilligan: May I say that nobody could object to legislation being prepared in advance of war, but people could object to legislation so prepared being put in operation before the time of war came? It is quite possible that certain conditions which might emerge during times of disturbances should be throttled before they actually broke out. There is a danger in waiting until the actual time of war or armed rebellion comes but, at the same time, this is an amendment of the Constitution under which the whole Constitution is simply lifted and put on one side. We have enlarged the phrase “time of war” under the Act already passed, and we are going to enlarge it still further to include a time when war is obviously not in existence. That might be a considerable time prior to the outbreak of war.
The Taoiseach: I am not competent to give an authoritative interpretation of it as it stands. I am only giving my own interpretation as it occurs to me. I shall consult our legal advisers as to what the correct interpretation is. There is, however, the difficulty that the Deputy has pointed out, that if we try to narrow it, we may be precluded from taking certain action at a time when the very existence of the State would depend on taking such action.
The Taoiseach: Now that it has been raised in a definite form, we shall have it examined. First of all, I want it to be clear that I am not expressing any advice I have received. I am only giving my own interpretation of it as it stands. It may be extremely difficult to narrow it in any way. We may find that we have a choice of two evils, and that the lesser of the two may be to leave it in this form and to expect that the Legislature of the day will take cognisance of these matters in particular circumstances as they arise, in other words, that the Legislature is not going to be bound by some constitutional point. Does the Deputy want to discuss the other part of it?
Professor O'Sullivan: We are going through very strenuous times at the present moment, and that is the reason I am not debating this at any length, but surely our difficulties, which are problematical to a large extent at the present time, will not be by any means problematic immediately after the war. That, I assume, is the justification for the extension. But there is no limit; it may last for years, and I think there should be some other action required on the part of the Dáil or of somebody. I see certain difficulties in fixing an arbitrary period of, say, six months. Somebody will say: “Why not say three months, or why not say nine months?” What I object to is a completely undefined and unlimited extension of what I might call, I think without exaggeration, the suspension of what remains of the guarding Articles of the Constitution so far as personal liberty is concerned. I am not at all for a moment denying the problem that  arises, and what may be its seriousness and urgency, but I do not like the wholesale, unrestricted and uncontrolled power to abolish what remains of the Constitution.
The Taoiseach: I assure the Deputy that I approached the subject myself from the same point of view, and I have considered a number of alternatives so as to try to limit it. The first difficulty is to say when is the war over.
The Taoiseach: We had better take those points one by one. That is a slightly different point, I think. We are on the other point about the extension of time. The difficulty is to point to any time at which the conflict, out of which the emergency has arisen, has ended.
The Taoiseach: Yes. There are all sorts of possibilities the moment you begin to examine it. Several States may have been involved; it may have developed and gone from, say, two particular States to a number of other States. You may have separate peace treaties and all the rest of it, so that you could not even say when peace has been signed. I have failed, and my assistants have failed also, to get any way in which you could determine the point of time at which the thing ended. Therefore, you cannot state a period after that, because the point itself cannot be determined.
The Taoiseach: Yes. The period is referred to. There may be a court decision as to whether or not it is exactly a time of war, but a difficulty arises as far as any extension from the particular time of the end of the war is concerned. The period of the war is a general sort of thing from which no evil consequences will flow unless you are going to take action with regard to the two ends of it. If we had an amendment in terms of the end of the war, then we would have somehow or other to be able to define the end. There was a line which I was thinking about, because I dislike this general extension too; it was that we start from the beginning.
There is a beginning, namely, when those resolutions have been passed, and when it has been decided by both Houses. Then you could possibly proceed this way, namely, to have it last for some period like three years, with the need of having similar resolutions at each particular period of, say, a year or six months after that if you want to continue it, that is, you would have a re-determination of the situation after the beginning, that is after the first period. But there are all sorts of difficulties. It is quite possible that it would be difficult to get Parliament together to pass those resolutions at the time when they would be needed, and it is doubtful if you could anticipate even to such an extent as to say: “Very well; you have a period of three years, and, if you want to extend it for  another period, do not wait until the last moment, but try to get some suitable period a couple of months in advance.” I think it would be extremely difficult in that case to be certain that some particular crisis might not exist which would make it impossible for the House to meet and to pass those resolutions. On the question of extension or restriction, on the whole it seems to me that if we have to choose between two evils—either to bind the Legislature constitutionally, preventing it from taking action in the crisis, or leave it free and take your risks—it is wiser to depend on the Legislature of the day rather than to preclude it in advance, by a Constitutional enactment, from taking action when the safety of the State or the whole existence of the State may be in question. If I could not get a fairly certain way of shortening the time I would prefer to proceed as we are proceeding here, that is simply to depend upon the Legislature of the day, the two Houses, to resolve that the situation has passed and that normality has supervened, rather than to bind them. I think it would be a very unwise thing to bind the Legislature by a constitutional enactment and prevent them from taking necessary action in time of conflict such as we are speaking about here.
Mr. McGilligan: I am in favour of the right of restriction, but taking the point of view that the extension is required I do want to give this warning. I think the Constitution has got into a definitely difficult position owing to the hurried piece of legislation that was passed here as an amendment to it, because the amendment that is here turns on a resolution about a national emergency. There are three positions that have to be attended to. One is a time of rebellion. The second is a time of war in which the State is participating, and the third is a time of war in which the State is not participating. A national emergency applies only to one of those three, and only to the third of them. You cannot, therefore, have a national emergency in respect of a rebellion inside the country.
Mr. McGilligan: You cannot have a national emergency in respect of a rebellion inside the country, nor can you have a national emergency in respect of a war in which the State is participating. What, then, are you tied to? You are tied to something done in time of war or armed rebellion. You may extend artificially, by the national emergency resolution, the period of war in which the State is not participating, but you have not extended by this amendment beyond the period in which a revolution takes place. A court decision will say that a rebellion is over or that a state of war has finished. If you want to enlarge it, you will have to go further than what you are doing.
Mr. McGilligan: The reason behind the enlargement is that a situation which calls for the suspension of the Constitution may exist after the date on which hostilities have actually ceased. But it is also very logical to argue that a situation demanding a suspension of the Constitution may exist after a rebellion has been crushed or after a war has finished. You enlarge it on the pivot of the phrase “national emergency”. The amendment I have down, amendment No. 39, tries to meet the situation. It was extremely difficult to draft. I am not so worried as my colleague over certain fundamental articles, because they can be changed by law. I am worrying about the provisions relating to confiscating property and controlling prices and the general effect on ordinary life, apart from grabbing people and putting them into jail, or breaking into houses, all of which can be met by the ordinary law, arising out of a court decision.
There is a certain latitude given with regard to the suspension of the ordinary law. We had one bad example in connection with the farmers' strike. That could be dealt with under provisions inside the Constitution. There are other cases which  have been referred to a special tribunal. We do not want a continuance of that a day longer than is necessary; but once you get a suspension of the Constitution you can do all these things. I think it would be wise to take the view of the House from time to time. Let us suppose the emergency resolution is enlarged to cover all types of armed conflict and rebellion. There is an Article in the Constitution which talks about abridging the time for the consideration of matters in the Seanad. The period runs for 90 days, unless there is some agreement to the contrary. I moulded that to this position.
There is another point. It is provided in the Constitution that if a piece of legislation is brought forward—not a resolution—and if a group of representatives of the country, numbering a majority in the Seanad and one-third of the members of the Dáil, think of objecting to it, they can put it up to the President that he should send it by referendum to the people. I do not see why we should make any difference between a piece of legislation and this type of resolution suspending the Constitution. If you brought in a piece of legislation to suspend the Constitution, it would fall under Article 27. I have no doubt that a measure that is going to suspend the whole Constitution would automatically have to be sent to the people for their view. I propose, as a try-out, that you get the view of both Houses from time to time and that you get such a majority as would prevent the application of Article 27, namely, that you get a majority of the members of Seanad Eireann and not less than two-thirds—something more than one-third—of the members of Dáil Eireann. You are, therefore, within your machinery, because you preserve yourself from the impact of Article 27.
Surely, in such a vital matter as suspending the Constitution, there ought to be certain limitations? So long as a conflict is on, nobody can object to a resolution being passed, but after the conflict has ceased, when there is peace or when a rebellion has been crushed, then I suggest there should be an appeal to the House and you should try to get a particular  majority and have the resolution holding only for a certain period. If the Constitution is of any value or importance to the citizens, you should not allow a majority in the two Houses to suspend indefinitely, by one simple resolution, the whole of the Constitution. There ought to be some care taken in that matter. We should at least pretend to have some reference to the Constitution to that extent.
Getting a majority in each of the two Houses is in most Constitutions regarded as a particular safeguard. Under our machinery you have brought about a situation in which the Seanad will nearly always be a duplication of the political atmosphere of the Dáil. It is elected at the same time and its members are affected by the same political considerations. Then again, the head of the new Government is allowed to nominate to the Seanad. You have made it absolutely certain that the Seanad will have the same political views as the Dáil and therefore the safeguard of the two Houses is somewhat weaker than if the Second House were constituted on a different basis.
Professor O'Sullivan: The Taoiseach raises a difficulty as to a more formal extension of the time. He indicated that the Dáil may not come together. Let us say the rebellion is over. Why could not the Dáil meet? If we are in a war, certain measures are taken. Supposing that war is over, surely the House can meet?
Professor O'Sullivan: But if the war is over the members of the House can meet. There is no difficulty, therefore, in the House meeting in order formally to extend this provision. I do not think that is a real difficulty. It is purely a theoretical difficulty. Candidly I am not sorry to see it. I think you ought to have a Constitution that protects. I was struck by the argument put forward by the Taoiseach, which was practically in favour of not having a Constitution owing to the danger into which it brings you. There  is the choice. I remember that on one occasion the advice given was that if you wanted to have a Constitution it should be written on one sheet of notepaper. Possibly we are coming to the point when there is a lot to be said for that. In principle I think the Taoiseach has largely arrived at that view. We are now getting into the position of making a Constitution which, in reality, can be swept aside, in so far as it has not been already swept aside.
The Taoiseach: Deputy McGilligan has raised slightly different questions. The first was about an extension of the period, which we have not considered, after a rebellion or after a war, in which the State was involved, that is a very important point to which I must give more consideration.
The Taoiseach: If it was of sufficient importance to need another Bill we might have to face it. I have not considered that. If there is a rebellion I wonder if the need for continuation of the period would be as great as in a war with an external power, with which the State was engaged. It is very hard to visualise all the possible things that might happen in case of rebellion.
Mr. McGilligan: Would the Taoiseach look at the beginning of the part re-referring to rebellion? It is only in case of actual invasion that the Government is armed to take the necessary steps. They are not empowered to take the necessary steps in case of rebellion.
Mr. McGilligan: If you look at the second part, you will see that the  Government is empowered to take whatever steps they consider necessary to protect the State in the case of actual invasion. Apparently they are not empowered to take steps to protect the State in case of actual rebellion. I think it should be included.
The Taoiseach: I will see if that is necessary. With regard to extension, it is possible that that ought to be covered. too. Some such set of circumstances might arise. The question is whether it is covered in any way now. We will have to revert to that to see if it does not call for another amendment. The present one was dictated largely by existing circumstances. Generalisation has to deal with cases other than those in which we are immediately involved. The difficulty is as to how we could provide for the period after the actual conflict had ceased. I do not think we could indicate any precise moment, when the conflict had ceased, that will be agreed upon. If there is an armistice, there may be a period fixed and an effort to make peace, but if the situation is such that two parties to the conflict were prepared to renew it, then it would be undesirable to imagine that the conflict had ceased at the armistice. If there are several parties to the war, there might be peace between some, and possibly between parties which affect the interest of this country in the first instance, but, while the conflict continued, the particular interest which justified the passing of a resolution might have passed and the conflict continued. If you are bent on fixing a period of time, the only approach feasible is to say that after a period the first resolution would hold good for two or three years or whatever period was considered right—but would cease at the end of that period. The putting aside of the Constitution would cease definitely at that time unless there was a resolution renewing it for a shorter period. The difficulty is what period of time to take in the first instance.
 No one knows how long a war is going to last. You might think it would last three years but it might last only a few months. When you fix a period you will have somewhat the same difficulty. It would not be the same because it is for an indefinite extension. If the House is satisfied I will be prepared to try an amendment on that, starting by saying that there will be, in the first instance, a period of, say, three years. I would be inclined to take three years, unless prior to that the House resolved that it should end then, and that a continuation would be possible only by having a resolution of the same type as the first resolution. If that would give more general satisfaction I am prepared to try it. On the whole, I am afraid in a time of crisis to bind the Legislature.
The Taoiseach: We are now getting well on to two years. The question is whether it is advisable to be discussing a matter like that. It would be always open to move a resolution that it had come to an end. I take it that it is always open to do that within the procedure of the Legislature. I have given a great deal of thought to the two things proposed, and unless there was a strong feeling on the other side I would be prepared to let this stand. If it would meet the views expressed on the opposite side to approach it from the other end I will do so. I am prepared also to consider whether we can within the rules of the House, and the decision of the Chair, get liberty to bring in an amendment to the other portion with regard to the extension as far as armed rebellion or war in which we are actually engaged is concerned. Could I get from Deputies an expression of opinion on that?
Mr. McGilligan: Unless brought to a termination earlier, and it would have to be ended more speedily by this resolution that the emergency has ceased to exist. Will the Taoiseach consider this point? It is quite likely that one of the undesirable sequels of this war will be that there will not be any armed conflict in this country but that there may be a shockingly bad economic situation. How long is it to be considered that that national emergency of an economic type has lasted? Is it going to be until somebody muddles through, so to speak, with a solution? Surely this national emergency ought to be tied more to what brought it about, the armed conflict, because one can see this Parliament being prolonged almost to eternity in certain circumstances. What is the national emergency? It is not defined in terms of war, but is defined here as an emergency affecting the vital interests of the State. Is it considered, in respect of a stale representative assembly, so to speak, because the Seanad will remain as long as the Dáil remains, without the people getting any chance to say: “You people have not done your job and we want a completely new Parliament,” that it is possible, on account of there being a national emergency of an economic type lasting after the war, for it to be able to sit on for ten or 15 years? We are putting it in our own power, or— let me put it this way—we are putting it outside the power of anybody else, to say that we should get out, and that is an undesirable situation.
The Taoiseach: It is, but you will be passing from one evil to a worse evil. What the Deputy suggests may be bad—I think it is not likely to occur —but a worse one still would be to end the existence of the State by being crippled or prevented from taking the necessary action.
Mr. McGilligan: What brings it about is either war outside the country affecting the State or rebellion within the country. That is what brings the whole situation about. This House, somewhat stale, is taking this opportunity to say that the provision of the Constitution as to the life of the Parliament will not operate until such time as we ourselves vote that the national emergency, which some people say we brought about ourselves, had ceased, and it may be a purely economic emergency. It is all very well to play for safety, but——
The Taoiseach: Any of us could allow our imaginations to run riot and speculate on all sorts of things which it would be nearly impossible to provide against. We are constantly making provision in regard to certain things being done by the Government and so on, but the fact is that the Government would not go on, as we know it, in the circumstances against which we are seeking to make provision. I do not think that Parliamentary institutions would continue to exist at all, if they were going to operate in the way the Deputy suggests, until the whole thing had ceased to have any real meaning and the people were driven to rebellion, or something else, to put an end to it. In other words, they would cease to have authority at all, if they continued abusing their position in the way indicated. I think that occasionally when we try to foresee all the possible things and make provision against them, we are, to a large extent, unreal, and not thinking of the situation as it is almost certain to be, because if there is a situation in which people are going to do these things, they will do them otherwise. The circumstances will be such that they would have the desire and the power to do them, except that they would not be covered by the cloak of constitutionality. I admit that, and it is necessary not to allow them to be covered by such a cloak, if they are acting in a way in which it was never intended they should act; but you are trying to do things to defeat absolutely the ingenuity of human beings, and I do not think you can do it.
Mr. McGilligan: Give an opportunity to the other point of view to emerge. As the Constitution stands, it can be suspended and kept suspended as long as the rebellion or state of war is on, and we have enlarged “state of war” to mean a war in which the State is not participating, but which affects the vital interests of the State. So long as a war inside or outside the country, or armed rebellion, is raging, the Constitution can be suspended for that length of time. That is a satisfactory situation and one that ought to be permitted. We are moving now to the other point—after the war is over—and it is easier to start a war than to bring it to an end, and the outbreak of war is much more easily defined in point of time than the time at which peace emerges and hostilities cease; but, in the doubtful period, there is at least leave for the Government to carry on with the Constitution suspended. They are only approaching danger when they come to the point at which hostilities have so clearly ceased that there may be a decision of the court that the conflict has terminated. That is all you are providing against. If it is hard to find out when war has ended, inside that period, the people who want the Constitution suspended are safe. The point of danger comes for them only when hostilities are so clearly over that the court will say so.
We want to enlarge that time, and I agree that it should be done and that provision should be made for permitting it in certain circumstances. All I say is that, instead of the onus being all one way, it should be the other way, and that it should be set out that it will not be continued, unless a resolution is passed carrying it forward again, and that that resolution shall have currency only for six months, unless carried forward once more, and once we carried forward a resolution, inertia would prevail. I suggest, as a proper approach to this, that as we are only dealing with this at a time when hostilities have clearly ceased, the onus should be upon those who want the suspension of the Constitution continued, and that they should bring forward a resolution and get it affirmatively voted by the House.
The Taoiseach: The Deputy seems to be able to fix in his own mind a particular time as if some deciding body —the court, the Deputy says—decided that hostilities have ceased and that the emergency affecting the interests of the country was over. The Deputy seems to have that quite clear and definite.
Mr. McGilligan: I think the fact that it is not clear and definite means that you have greater power to suspend the Constitution over a longer period, because it is only when it is clear beyond all doubt that hostilities have ceased that you may be hampered. The advantage is with the people who want the Constitution suspended all the time. However, there have been several views expressed on it, and it is a matter which can be considered.
The Taoiseach: I shall consider it. As I told the House at the start, I very much dislike the indefiniteness, but the only thing is that you are not going to make it more definite without running very great risks.
Mr. McGilligan: I do not propose to make it definite. I propose that the House should be told from time to time: “We think this ought to be carried on.” Does the Taoiseach not know well that he got a greater reception with regard to the passing of emergency legislation than any other person in this country, and that if he had to bring forward a prolongation of the Emergency Powers Act at this moment he would get the same support?
The Taoiseach: I think that is so. It is only a question of the particular time at which you would have to bring it forward, because some of the dangers we are trying to prevent would continue to exist. I should like to make one remark now which I intended to make earlier with reference to the point of having some number other than an ordinary majority to decide certain things. I am afraid that would lead us into all sorts of difficulties, because, if the Government is to carry on, it can only carry on on the basis of governing by a majority. Something which may be  absolutely vital from the Government point of view, the policy point of view, for carrying on may be involved in a matter of this sort, and, if you bring in something other than a majority, you will have the curious situation that the Government will be supported by a majority, but will be prevented from doing something which may be regarded as vital, to such an extent that the Government in question may have to say: “You are depriving us of the power to carry on, although we are entitled to carry on by reason of having a majority of the House,” and you would create a very awkward situation, so that I am afraid any figure like two-thirds coming in to remedy a situation like that, or any definite figure more than a simple majority, would not be workable. There is really a genuine difficulty which both sides of the House appreciate, and I am anxious to get the greatest degree of agreement I can on this matter and, without prejudice, to get the best solution. I know the proposal put forward by the Deputy and I shall consider it side by side with the idea which I have been pursuing myself as to whether we could not get a better result by commencing with a definite time and then have it cease unless there is a further positive resolution by both Houses. That will not completely obviate the difficulties referred to by the Deputy because it will mean that the Legislature will be able to continue its existence. If a majority want to use an emergency, or the pretence of an emergency, to serve its own purposes, then it will be possible for that majority to continue in power. If the matter is left over, I shall consider it again.
The Taoiseach: It will be quite understood, if there is a further amendment, that we shall have to come to a decision and I hope Deputies on the other side will not say that anything they offer is being turned down. If it is turned down, it will be only because we shall have the responsibility of getting things done.
Mr. Costello: As I understand, the new paragraph 2, proposed to be inserted, prohibits the raising of any question in any court except the High Court as to whether a law is valid or invalid, having regard to the provisions of the Constitution? Am I right in that?
Mr. Costello: It appears to me that, if that provision is inserted in the Constitution, it may have wider application than is intended. A case may commence in the Circuit Court, or even in the District Court, and, in the course of the hearing, an issue may emerge involving a question as to whether the law supposed to govern the case is valid or invalid, having regard to the Constitution. Because that case is within the jurisdiction of the  Circuit Court, that point cannot be raised there. Although the case may be governed by a law which, in other proceedings, may be declared to be invalid by the High Court, having regard to the provisions of the Constitution, the party involved in the proceedings in the Circuit Court may find himself decreed or may lose his action because he is not at liberty to raise the point.
Up to the present, the practice in matters of this kind was that if a party to proceedings in the District or Circuit Court raised a point as to the invalidity of a law governing the case, proceedings were stayed or adjourned until the issue was determined by the High Court. That course cannot be adopted under this provision. The case must go on in the Circuit Court.
Under the provisions of the Courts of Justice Acts, particularly the Act of 1936, the practice is fairly rigid. The law laid down in these Acts to secure that cases within the jurisdiction of the Circuit Court are heard there and are not brought in the High Court is given rigid application. Under this provision, if it emerges in the course of the hearing of a case in the Circuit Court that the real issue turns on the validity of an Act, having regard to the provisions of the Constitution, that issue must be left out of consideration. In other words, a party may override a Constitutional provision by bringing his case in the Circuit Court. Suppose there is a case involving a sum of £301—I take this as a fortuitous example — the person claiming that money may say: “If I bring proceedings in the High Court, the other party will raise a question as to the validity of the law. I will drop £2 of my claim and bring the case in the Circuit Court for £299 and I have caught my opponent under an unconstitutional Act.” That appears to be the effect of it.
Mr. Costello: Assuming the Taoiseach is right—I do not say he is —and that the unfortunate defendant who had to submit to a decree in the Circuit Court appeals, I do not think there is any procedure by which the Constitutional point can even then be raised before the judge, who is not the High Court. That is the fallacy in the Taoiseach's argument, because, although he is a judge of the High Court on circuit, he is not the High Court. He is a judge of the High Court on circuit, exercising statutory jurisdiction. Supposing he is a Supreme Court judge—Supreme Court judges also go on circuit—he is a Supreme Court judge on circuit, and, therefore, the point could not be raised. Assuming it was raised in the example I have given, and instead of bringing an action for £299, the man brings it for £10. He is then within the jurisdiction of the District Court. By no possible procedure can he get the decision of that court into the High Court. The only appeal from that court is to the Circuit Court. It appears to me, therefore, that the effect of this will be that certain people will be caught under an unconstitutional statute and cannot get the point decided in the High Court.
Mr. McGilligan: Take another example. Supposing the Attorney-General decided to bring a man before the Special Criminal Court, which is not the High Court or the Supreme Court. Can a person brought before that court not raise a Constitutional point?
Mr. Costello: The Taoiseach asked what is the position at the moment. I  do not know what the position is at the moment, but I know that under the old Constitution the position was that if, in the District Court or the Circuit Court, a party raised the point that the law under which he was being sued was invalid, having regard to the provisions of the Constitution, then the proceedings were stayed or adjourned to enable that party to bring proceedings in the High Court to have it decided. I am putting it to the Taoiseach that the present proposals prevent that procedure, which was hitherto adopted, from being adopted.
Mr. McGilligan: I doubt it. In any event, I think we are at one in this, that the intention is that it ought to be only the High Court or the Supreme Court that will come to a decision on a Constitutional point. There are two methods. The method I have adopted is that if the point is raised, either on pleadings or in the course of argument, then it has to go to the High Court. The situation left by the amendment proposed in the Bill is that the point cannot be raised or cannot be taken in this court and the man is left without a remedy.
The Taoiseach: The difficulty is that there is delay. If, for instance, it was the other way round, and a person knew that it would depend on a Constitutional point, the intention is to make him go straight off to the High Court. I am assuming that it was the other way round—not the case put by Deputies. If it were the other way round and I was bringing a case and was choosing which court to go to on a matter which depended on a Constitutional point, the intention is that that would be taken to the High Court and decided there. That is all right. If it were a case in the lower court, to hold up a case until a decision is taken by the High Court is a different matter. I think it would be very much better if we precluded the lower court from considering these cases at all and taking that point. If it is to be raised, it should be raised in the High Court. If there is some decision given in the lower court which might not have been the decision given, so to speak, if this point could have been taken, the remedy would lie in the person who thought he was aggrieved taking the matter to the High Court.
The question was raised if that can be done in all cases. My understanding was that in all cases you could seek your remedy, if the law under which the penalty was inflicted or a particular decision arrived at was in fact invalid; that the person who felt that the decision should have been otherwise because the law itself was invalid could go to the High Court and obtain a remedy. If we could get agreement on that, I would prefer the procedure that the lower court should not touch it and that the matter should be decided definitely by the High Court. I do not know myself whether there is a remedy in all cases. If there is not, I will admit that a case has been made by the Opposition.  But, if there is a remedy in all cases, and I am informed that there is, then the procedure proposed here is much better.
 The new words in amendment No. 53 are not objectionable. It is the amendment of the Constitution as proposed in reference 25 that is objected to. If the Article is carried, amendment No. 53 could come on, to put in these new words.
Na focail “nó don bhreitheamh sin di” agus “or such judge thereof” fé seach do scriosadh as fo-alt 2º i gColúin 3 agus 4 ag Uimh. Thagartha 25 agus na focail “agus d'aon bhreitheamh agus do gach breitheamh  di chun a ndéanfar an gearán san” agus “and any and every judge thereof to whom such complaint is made” fé seach do chur ina n-ionaid.
At Reference No. 25 to delete in sub-section 2º in Columns 3 and 4 the words “nó don bhreitheamh sin di” and “or such judge thereof” respectively and substitute the words “agus d'aon bhreitheamh agus go gach breitheamh di chun a ndéanfar an gearán san” and “and any and every judge thereof to whom such complaint is made” respectively.
The amendment is intended to make quite clear that the complaint of a person that he is being unlawfully detained may be made in the first instance to any and every judge of the High Court and that upon refusal by one or more judges the application may be renewed before the other judges or any of them. In other words, that you may make your application for a conditional order which is usually the first step in a habeas corpus application to the various judges of the High Court in succession. That is to meet a point that was made by some speakers on the other side on the Second Reading.
The second step when a conditional order has been granted, is to have a careful judicial inquiry carried out into the legality of the detention. It has been suggested by Deputy Costello that before 1922 there was a right to go from judge to judge after the legality of the detention was inquired into, and established. I think he will find on consulting the Law Reports that this right was to go from court to court and not from judge to judge. There must be some finality even in a habeas corpus proceeding and it is expected that under the Article, as amended, a decision by the High Court that a detention is legal will determine the matter so far as that court is concerned, but will leave it open to the applicant to appeal to the Supreme Court. That was the old position which prevailed and it has not been disturbed by this amendment.
Mr. McGilligan: But the Taoiseach is not pretending that there is no change being made from the present position? Are we not going to have this position now: A person gets a conditional order of habeas corpus from one judge, whereupon the President of the High Court can call together a court of three judges, excluding from it the judge who gave the conditional order? That is not the practice now. Under this, the President of the High Court can say: “I am going to have a court of three judges, but Judge X, who gave the conditional order, will not sit on it.”
The Taoiseach: Supposing the judge happened to be sick or for some other reason was unable to act, he naturally would be excluded. The point is that, in practice—I am sure the practice will continue—the judge who gave the conditional order would be a member of the court. I cannot imagine anybody determining the constitution of the court excluding him. I do not think he would be excluded in the future. At the same time you should not say explicitly that he shall be a member of the court because for some reason he may not be able to act.
Mr. McGilligan: Leaving out the question of illness, I have asked the Taoiseach whether there was ever definite power to exclude the judge who gave the conditional order from sitting in the final court.
The Taoiseach: I believe there was such a power, but that it was never exercised. As far as I know the position was this: that, in important cases, the ultimate determination was generally made by a court of three judges. Some one had to constitute the court. I have never heard that there was an obligation on the person constituting the court to have one judge more than another on it: that it was obligatory on him to have the judge who gave the conditional order on it, but, as a matter of practice, he did it, and, as a matter of practice, I believe it will happen in this case, too. There is no need to lay that down explicitly, because I think the President of the High Court, in selecting the members of the court, would advert to the importance of having the judge who heard  the application in the first instance a member of the court.
Mr. McGilligan: The Taoiseach is making a new piece of law now. When I asked on the last occasion if it was considered desirable to give the President of the High Court the power to exclude the judge who gave the conditional order, the Taoiseach said he wanted to confer that power.
The Taoiseach: I did not answer it that way. The Deputy asked, would it be possible under this for the President of the High Court to exclude the judge who gave the conditional order. I say, from the reading of this that it would, but that if he were going to take upon himself the responsibility for doing so, it would be against the usual practice, as I understand it. But he is not prevented by this from doing it.
Mr. McGilligan: That is not the context in which the remarks were made. The Taoiseach was making a great play with the fact that the amendment was quite simple, and only meant that he wanted a court of three to decide an important habeas corpus application instead of a single judge. I said: “Very good, it is a suitable amendment,” and I asked: “Does the amendment not carry with it the implication that it seemed to give the  President of the High Court power, when forming the court, to exclude from that court the judge who gave the conditional order?” and I was told that it was desired to give him that power.
Mr. Cosgrave: On this amendment, and on the Article to which it is an amendment, it has been stated that somebody from this side of the House made a statement. The statement was made by Deputy Costello from firsthand knowledge of a case which came before the court here. My recollection of what he said was that they had gone from judge to judge and gone to the last judge—the late Master of the Rolls, God rest his soul—in the case of Egan v. Macready; and on the date prior to the date fixed for the execution of Egan they got from the Master of the Rolls a conditional order—from the last judge in the last case. That was the law in 1921 and that law was preserved, mainly through the work of the late Chief Justice Kennedy, in the first Constitution of this State. It is now about to be altered, to the detriment of the individual. I propose to vote against the alteration.
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