——and I think we can leave the people's rights in this case to the Supreme Court. Deputy Desmond suggested that the Government were indulging in what he called indecent haste in bringing forward this legislation. I explained already why we brought the legislation forward—in anticipation of the White Paper. I do not think it matters but it was Deputy Desmond's leader, Deputy Corish, who in October last asked me specifically to bring forward this legislation because by then, he said, we ought to know what type of constitutional amendments would be required. Deputy Corish was anxious that the Dáil should be informed as soon as possible as to what these constitutional amendments were to be. I would like to point out again, as I have done in the House on many occasions, that the extent and form of the constitutional changes required have been under close examination for some considerable time by the Attorney-General's Committee to which I referred and by the Government.
Perhaps I could move now to the scope and form of the amendment and deal with some of the criticisms that have been made of it during the course of the debate. The proposed amendment was chosen after very careful consideration. We see certain essential requirements for this type of amendment. First, it should be comprehensive enough to enable us to fulfil all the obligations required by the three Treaties and the great body of legislation that has flowed from them. As I said in my opening speech, the Supreme Court is competent to decide what Articles of the Constitution will be affected and that if we amend individual Articles, it will be very difficult to ensure that all the necessary amendments are carried out. It would be impracticable to refer the huge body of Community legislation to the Supreme Court for them to decide the compatibility of each item with our Constitution. The Court would consider the compatability of each separate obligation only after it became part of the law of this State or if it was referred to them, that is, in the form of a Bill under this Constitution.
I think Deputy FitzGerald agreed that the only realistic course in approaching this amendment was to have it incorporated in one comprehensive amendment. An Article by Article approach would have the consequence that each Article would have to be expressed as unaltered for domestic purposes but to read differently for the purpose of membership of the European Communities. In that case we could finish up with two Constitutions, one for domestic purposes and one relating to the Communities. Deputy Cosgrave argued in favour of providing that certain Articles of the Constitution should be excluded specifically from the scope of the proposed amendment, particularly those dealing with fundamental rights and freedom. It would be difficult to make a selection for this purpose. The Constitution is the fundamental law of this country and there would be no obvious criterion by reference to which any Articles could be classified as being more fundamental than others. Deputy Cosgrave referred to that part of Article 15 which deals with the right to raise and maintain military armed forces which right, the Article says, is vested exclusively in the Oireachtas. The Deputy referred also to Article 28, subsection 3 which says that:
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...
He referred to Articles 40 to 44 which are the Articles that deal with personal rights. I agree that all of these are very important Articles but there are other very important Articles which could be described as fundamental but which would not be affected by our accession to the European Economic Communities. For example, there are Article 9 which deals with citizenship, Article 12 to 14 which deal with the Office of the President, Articles 16 and 17 dealing with election to Dáil Éireann and Articles 18 and 19 dealing with election to Seanad Éireann. Therefore, it is clear that drawing up a list of the type mentioned by Deputy Cosgrave would entail classifying some Articles of the Constitution as being more fundamental than others. This, at least, would give rise to considerable controversy and, furthermore, it would be assumed that these Articles which are omitted could be affected by our membership of the Communities.
Deputy Cosgrave mentioned also the transitional period when this Constitution was before the people and he said that there were certain Articles at that time that were excluded from amendment. I do not think he made the point that they were more fundamental in content but they were excluded specifically at that time because one of them, Article 46, was the Article which enables the Constitution to be amended. There was no point in having that amended since it was the machinery for amendment itself. The other Articles were called transitory provisions, starting with Article 51 and these, automatically by their own terms, ceased to have effect after the three year transitional period. Therefore, there is no argument there that certain Articles were picked out in the Constitution because of their importance and were deemed to be incapable of amendment.
Some Deputies criticised the phrase "consequent on" as being vague and too wide or, possibly, embracing legislation which does not arise directly from the three Treaties as they stand now. No Deputy referred to the Irish version which, I think, is much more specific although the words used are not very common in ordinary Irish. It refers to acts done "de dhroim do bheith ina chomhalta de na Comhphobail..." That, I think, is much more emphatic than "consequent on". However, I am not completely wedded to the words "consequent on". I can refer to that later. They do refer to action taken by the Government for the sole purpose of discharging obligations which membership of the Community will create for us, obligations, for example, like legislation to give effect to an EEC directive which, as I mentioned when opening this debate, leaves it to each member State to enact whatever legislation is necessary in order to achieve the result prescribed in the directive.
A further essential requirement is that the amendment to the Constitution be no wider than is necessary to enable this country to accede to the Communities and to fulfil the obligations imposed by membership. The amendment proposed in the Bill enables us to accede only to the three Communities at present in existence and to validate laws enacted by the State consequent on such membership. These laws, as I also pointed out, can be tested in Irish courts to ensure that they are consequent on membership of the Communities. If they are not, they will be rendered invalid by our courts. It is clear, therefore, that the proposed amendment meets our requirement in this regard. If, however, we were to proceed by piecemeal amendment, as suggested by some Deputies, there would be a tendency to include a large number of Articles, larger probably than might be strictly necessary, because only the Supreme Court is competent to decide those Articles that do require amendment and the Articles that do not. By comparison. I think it is evident that the amendment proposed in the Bill can be said to be a more satisfactory way of dealing with the problem of confining possible legislation to the requirements that will fall on us as a result of our membership.
One further essential requirement is that the amendment should be simple. Both parties opposite have agreed that this should be so, that it should in no way be confusing for the general public and should, if possible, and I think that this will be possible, facilitate a simple answer of "Yes" or "No".
I think that an amendment Article by Article would be so confusing for the electorate that it would be completely unfair to present the amendment to the Constitution in that way. This procedure was examined—that is amendment Article by Article, and the exclusion of specific Articles from the scope of any constitutional amendment—by the Attorney General's legal committee and by the Government and it was only after the fullest consideration that both these courses were rejected. Neither of them satisfied the essential requirement which I have mentioned, that the amendment should be completely comprehensive, not wider in scope than is absolutely necessary and simple enough to make the issue clear to everyone.
A number of Deputies suggested that the proposed amendment before the House might be unconstitutional under Article 46, paragraph 1, of the Constitution. This Article reads:
Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.
The operative word there is "addition" and the proposed amendment is in accordance with that part of that Article because it involves the addition of a new subsection to Article 29.
