President Michael D Higgins has signed legislation that will allow groups representing enlisted and commissioned personnel in the Defence Forces to associate with the Irish Congress of Trade Unions on industrial relations matters.
Mr Higgins had convened the Council of State – a body made up of current and former members of Government, holders of high office and the judiciary – to consult on the constitutionality of the Bill.
This had opened up the possibility that he would refer the Bill to the Supreme Court to assess its constitutionality, but on Wednesday the President confirmed he will in fact sign it. In so doing, he has kept the possibility of a court challenge to it being taken in the future alive, which would not have been possible had he referred it to the Supreme Court.
Organisations representing Defence Forces members had objected to a provision in sections 11 and 24 of the Bill, which specifically bans Defence Forces members from commenting on a political matter “or a matter of Government policy”.
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It also provides for an External Oversight Body for the Defence Forces, which is designed to drive cultural change in the military and increase transparency and accountability.
In a statement, Áras an Uachtaráin said he had considered the views expressed by the Council of State at Monday’s meeting regarding the constitutionality of the bill in relation to two sections in particular.
“When considering any piece of legislation, the President must be cognisant of Article 34.3 of Bunreacht na hÉireann, which provides that no Court can question the validity of any legislation following a referral by the President to the Supreme Court, and the capacity of a putative litigant on a fact-based rather than abstract grounds has to be taken into account,” the statement said.
“The President’s decision to sign this legislation thus does not close off any actions sought by any member of the Defence Forces, or their representative association, to challenge the provisions of the Bill in the future.”
Racos, the Defence Forces’ staff association, noted the decision, thanked the President and Council of State for their consideration, as well as members of the Oireachtas who opposed “deficiencies in the legislation”.
“The lack of meaningful consultation with Defence Forces representative associations throughout this process has been a source of significant concern to our members, but we take solace in the repeated assurances by the Tánaiste that our rights to represent our members will not be diminished, but rather enhanced by this legislation,” a statement from the organisation said.
“Our members note in particular that the President’s decision to sign this legislation does not close off any actions sought by any member of the Defence Forces, or their representative association, to challenge the provisions of the Bill in the future, should that be required.”
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