Dáil Éireann - Volume 67 - 26 May, 1937

Bunreacht na hEireann (Dréacht)—Coiste (Ath-thógaint).

Mr. H. Flinn: The point we were at when this debate was adjourned was, whether or not the particular method of dealing with a President, whom it is desirable to remove, as laid down in the Draft could be improved. I suggested that the Dáil, as such, would not, in my opinion, be a good court to [1161] try a matter of fact. I was suggesting that, while I thought the Oireachtas a perfectly proper body to initiate a proceeding of this kind, and one which would be very definitely concerned in the public conduct and suitability of the President, and have a very definite duty in the supervision of and making effective any assurance that that conduct would be right and proper, I did not think they were themselves the body actually to try him. I was suggesting that we might, by leaving out the word “impeached”, make sub-section (1) of Section 10 of Article 12 read: “The President may be charged at the instance of not less than two-thirds of the total membership of the Seanad or Dáil for treason as defined in this Constitution, or for other misconduct unfitting him for his office”, and that then it should go on to say that the question of fact shall be decided by a court acting for the Oireachtas set up hereunder, whose decision shall be accepted as the decision of the Oireachtas. I can quite see that the Oireachtas itself might desire to keep it within its own control and to take full responsibility for any action taken in relation to that officer; but it might very well hand over the trial to some body, set up under the Constitution, which could not obviously be set up ad hoc, which would not be influenced in any way by the personality of the man himself, or the particular circumstances—some particular body which would exist before the offence for trial and which would exist after the offence for trial.

There is one other point which has been raised with which I should like to deal and that is the question suggested that any form of trial here, whether you call it impeachment or otherwise, is equivalent to a criminal trial in the ordinary sense of the term. I expressed disagreement with that view on the Second Reading and I think that that disagreement has been endorsed by Deputy Lavery, when he states that the only specific sanction and the only sanction which is contemplated in this clause is deprivation of office. It seems to me to be equivalent to a case in any local authority or civil service or anything of that [1162] kind where a man might be dismissed from the service for an offence without any relation whatever to what action would be taken afterwards by a court. That is borne out by the actual wording of sub-section (3), clause 8, of Article 13 which says: “No action at law or in equity or other legal proceeding, civil or criminal, shall lie against the President during his term of office”. That, I think, makes it perfectly clear.

Mr. MacDermot: That particular section is being eliminated by an amendment.

Mr. Flinn: There is going to be an equivalent put in to cover a difficulty of that kind. At any rate, we are dealing with the Constitution for the moment as it stood. The Constitution did, so far as I can see, if you read these two clauses together, contemplate that, for certain action which rendered a man unfit to be President, the only sanction of the only court which would try him was to declare him unfit and to remove him from his office; while, at the same time, they did contemplate that his immunity for any act, criminal or otherwise, which he committed would only exist during his term of office.

To come back to the previous point, I should like to see some method of trial of the matter of fact in relation to the criminality or otherwise of any act of the President other than what would really amount to a vote of this House. The only case that I remember in this House—it is almost a reductio ad absurdum—in which the House was asked to decide upon a matter of fact, was when they were asked to decide, as a matter of fact, which of the two Jim Larkins Junior was the Jim Larkin Junior who was elected. If the House will go back in recollection to the actual circumstances of that case, how we came to try it and how the judges voted when they came to decide the question of fact, they may think that in the only case in which we have acted as a court in relation to a fact we did not show any very marked impartiality. It is because I think that, of its own nature, an Assembly of this kind is not the best way to try a matter of [1163] fact, that I should like to have it in some other hands.

The difficulty is, as the President pointed out, that lots of other people have been up against this problem, and they have, in fact, used the particular machinery set down here. I think that the President might well consider in the interval whether or not, while leaving the initiation of the proceedings and responsibility for the charge upon the Dáil—where, I think, it ought to rest—he would leave the decision as to the question of fact, as to whether that charge was proved or not, to some tribunal which would not be influenced by the influences which normally influence us here. That decision would then be accepted by the Oireachtas as their decision. That arrangement might possibly be better.

The President: I do not think we are making any further progress now. There is a good deal of common ground which I probably could meet on the Report Stage. I think I have already indicated that the difficulty of the Dáil under the Constitution investigating the charge was present to my mind at an early stage. I remember that the Draft contained a provision [1164] like this, that when a matter came before the Dáil they would cause it to be investigated by the High Court, which would furnish a report to the Dáil, and the Dáil would then decide. In other words, I think it would be wrong for Parliament to take away from its own hands the pronouncement of judgment. That should be a duty for the Dáil itself. Perhaps with the leave of the House we could postpone this to see whether we could get something that might get better acceptance on the next stage than we have here. There is the question of the word “investigate.” That is to say whether the Dáil itself would have to sit as a court in full session or whether “investigate” would not mean causing it to be investigated and get the court to pronounce judgment. It is possible that that interpretation of the word would be regarded as straining the language a bit too much. However, it is better to pass from it now and see whether we could do better on the Report Stage.

Mr. Cosgrave: This does not come up again if we divide on it.

Question— “That the words proposed to be deleted stand”—put.

The Committee divided: Tá, 51; Níl, 31.

Aiken, Frank.

Allen, Denis.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Bourke, Daniel.

Brady, Seán.

Breen, Daniel.

Briscoe, Robert.

Cleary, Micheál.

Concannon, Helena.

Cooney, Eamonn.

Corry, Martin John.

Crowley, Fred. Hugh.

Crowley, Timothy.

Daly, Denis.

Derrig, Thomas.

De Valera, Eamon.

Everett, James.

Flinn, Hugo V.

Flynn, Stephen.

Gibbons, Seán.

Goulding, John.

Harris, Thomas.

Hayes, Seán.

Kelly, James Patrick.

Kelly, Thomas.

Keyes, Michael.

Kilroy, Michael.

Lemass, Seán F.

Little, Patrick John.

McEllistrim, Thomas.

Maguire, Ben.

Moane, Edward.

Moore, Séamus.

Moylan, Seán.

Murphy, Patrick Stephen

O Briain, Donnchadh.

O Ceallaigh, Seán T.

O'Reilly, Matthew.

Pattison, James P.

Pearse, Margaret Mary.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Traynor, Oscar.

Walsh, Richard.

Ward, Francis C.

Níl

[1165]Bennett, George Cecil.

Broderick, William Joseph.

Cosgrave, William T.

Costello, John Aloysius.

Daly, Patrick.

Desmond, William.

Dockrell, Henry Morgan.

Doyle, Peadar S.

Fagan, Charles.

Finlay, John.

Fitzgerald, Desmond.

Fitzgerald-Kenney, James.

Holohan, Richard.

Keating, John.

Lynch, Finian.

McFadden, Michael Og.

[1166]McGilligan, Patrick.

McGuire, James Ivan.

Morrisroe, James.

Morrissey, Daniel.

Mulcahy, Richard.

Nally, Martin.

O'Donovan, Timothy Joseph.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Neill, Eamonn.

O'Reilly, John Joseph.

O'Sullivan, John Marcus.

Redmond, Bridget Mary.

Reidy, James.

Rice, Vincent.

Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.

Question declared carried.

The President: As I have already indicated, I am withdrawing amendment No. 24, and I will not move any amendment in this connection until the Report Stage, so as to make some changes in order to meet the views expressed here.

Amendment No. 24 not moved.

Mr. MacDermot: I do not propose to move amendment No. 25 in view of the President's promise to recast the section.

Amendments Nos. 25 to 28, inclusive, not moved.

Mr. MacDermot: With regard to Article 12, Section 11, there is a reference to an official residence near Dublin. I should like to ask whether any particular residence has been thought of, whether consideration has been given to the possibility of taking over the building now used as the American Legation. As there is about to be a change in regard to that post, it seems to me a suitable moment for considering this matter.

The President: That matter is being considered. If the Constitution goes through that would, for the present at any rate, be a suitable residence.

Professor O'Sullivan: I raised one point and, judging from various gestures, it was apparent that some Deputies did not quite agree with it. I mentioned that I saw little chance of a man prominent in Labour politics getting nomination.

The President: I have considered that myself. Various suggestions were made with regard to any person going forward for election securing nomination from different institutions, say, for instance, county councils. I agree that the proposal in the Constitution may not actually meet the point made by the Deputy, but if anybody can suggest a better method we will consider it.

Professor O'Sullivan: Far be it from me to suggest anything.

The President: It ought at least to be the duty of Deputies to put forward amendments.

Mr. McGilligan: And then you will say that there is considerable difficulty and that you are not sure that the amendment meets the point, and then the whole thing lapses.

The President: The Deputy knows that that is not the attitude I have taken up at all.

Mr. McGilligan: That is completely the attitude, the complete expression. There is no assurance that the county councils, for instance, will last as institutions in the country, and then there is so much thrown back on members of the Dáil.

The President: The Constitution may not last either.

Mr. McGilligan: That is the first hopeful thing you have said.

Article 12, as amended, put and agreed to.

ARTICLE 13.

[1167] 1.—1º. The President shall, on the nomination of Dáil Eireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister.

2º. The President shall, on the nomination of the Taoiseach with the previous approval of Dáil Eireann, appoint the other members of the Government.

3º. The President shall, on the advice of the Taoiseach, accept the resignation or terminate the appointment of any member of the Government.

2.—1º. Dáil Eireann shall be summoned and dissolved by the President on the advice of the Taoiseach.

2º. The President may in his absolute discretion refuse to dissolve Dáil Eireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Eireann.

3º. The President may at any time, after consultation with the Council of State, convene a meeting of either or both of the Houses of the Oir eachtas.

3.—1º. Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law.

2º. The President shall promulgate every law made by the Oireachtas.

4.—The supreme command of the Defence Forces is hereby vested in the President.

5.—1º. The exercise of the supreme command of the Defence Forces shall be regulated by law.

2º. All commissioned officers of the Defence Forces shall hold their commissions from the President.

6.—The right of pardon and the power to commute punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of communication may, except in capital cases, also be conferred by law on other authorities.

7.—1º. The President may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or [1168] address on any matter of national or public importance.

2º. The President may, after consultation with the Council of State, address a message to the Nation at any time on any such matter.

3º. Every such message or address must, however, have received the approval of the Government.

8.—1º. The President shall not be answerable to either House of the Oireachtas for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.

2º. In the event, however, of the impeachment of the President under Section 10 of Article 12 hereof his conduct of the office of President may be brought under review in Dáil Eireann but only in so far as is, in the opinion of the Chairman of Dáil Eireann, necessary for the proper investigation of the charge.

3º. No action at law or in equity or other legal proceedings, civil or criminal, shall lie against the President during his term of office.

9.—The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body.

10.—1º. Subject to this Constitution, additional powers and functions may be conferred on the President by law.

2.º. No such power or function shall be exercisable or performable by him save only on the advice of the Government, or after consultation with the Council of State, as may be determined by such law.

Amendment No. 29 not moved.

Mr. MacDermot: I move amendment No. 30:—

In Section 1, sub-section 2º, line 1, and in sub-section 3º, line 1, to [1169] delete the word “Taoiseach” and substitute the words “Prime Minister,” and to make consequential amendments throughout the Bunreacht.

The effect of this amendment is merely to provide that in the English version, not in the Irish version, of this Constitution we should have the words “Prime Minister” instead of the word “Taoiseach.” It seems to me to be mere make-believe to try to incorporate a word like “Taoiseach” in the English language. It would be pronounced wrongly by 99 per cent. of the people. I have already ascertained it is a very difficult word to pronounce correctly. That being so, even for the sake of the dignity of the Irish language, it would be more sensible that when speaking English we should be allowed to refer to the gentleman in question as the “Prime Minister.”

Professor O'Sullivan: What is the ordinary meaning of this word “Taoiseach,” apart from the use we put it to in the Constitution?

The President: It has several meanings.

Professor O'Sullivan: It would mean “chieftain”?

The President: Yes, or “captain.”

Mr. MacDermot: The President made a concession in regard to “Eire” and perhaps he might make a concession also in this connection.

The President: I am not disposed to start on a similar trail for nothing. I think the word “Taoiseach” does not require to be altered. Just as we use “Ceann Comhairle,” the word “Taoiseach” can be used very well as the official title.

Mr. MacDermot: The President will agree that while there may be difficulties with regard to “Eire,” on account of the distinction drawn between the State and the territory, there is no such difficulty at all as regards “Taoiseach.” Therefore, I wish to press my request. It is just one more example of the sort of things that are being done here as if for the purpose [1170] of putting off the people in the North. No useful purpose of any kind can be served by compelling us, when speaking English, to refer to the “Taoiseach” rather than to the “Prime Minister.”

Question— “That the word proposed to be deleted stand” —put and declared carried.

An Ceann Comhairle: Amendment No. 31 seems to cover the same point as amendment No. 97.

Mr. McGilligan: I move amendment No. 31:—

In Section 1, sub-section 2º, to delete the words “other members of the Government,” lines 2 and 3, and substitute the word “Ministers”.

There is not much to be said on this, excepting only this point, that these people are described as the “other members of the Government,” and in a later section, when it comes to a division of functions, it refers to dividing amongst “the Ministers.” Why cannot the word be used here?

The President: I would point out to the Deputy that Section 12 of Article 28 sets out:

The following matters shall be regulated in accordance with law, namely, the organisation of and distribution of business amongst Departments of State, the designation of members of the Government to be the Ministers in charge of the said Departments...

Mr. McGilligan: So they are going to be Ministers.

The President: Not necessarily all of them. It does not follow that every Minister should have a Department, for instance.

Mr. McGilligan: Any man who has a Department will be a Minister.

The President: The distinction is this: a member of the Government has more or less two functions, one being that of an administrator of a Department of State and the other as a member of the Government to give his views and to assist in decisions which have to be come to by the Government as a collective body. [1171] There are two different functions, and the chief and main one, in my opinion, is that of deciding, of being a part of the body that is the Executive and deciding questions of public policy or general questions of administration. It is not necessary that we should have an Act which would provide that each member of the Government should have a Department of State to administer. You might have, as was suggested, Ministers without portfolio. That is quite possible and we are not here determining that question. That is to be settled by law and I think it is wise that it should be settled by law. We distinguish between two functions of a member of the Government, one as part of the body called the Government which is collectively responsible to the Dáil for decisions, and the other as an administrator, at the same time. We are not settling here that question. It is left to law to determine how the Departments of State shall be distributed amongst the members of the Government. I think the distinction is a useful one and ought to be preserved.

Professor O'Sullivan: Can you not have a Minister without portfolio? Will that not meet your difficulty?

The President: It is a question of nomenclature here, but I hold that the distinction is useful.

Mr. McGilligan: And experience has so far shown it?

The President: It does not matter about experience so far. We have not lived for ever yet.

Mr. McGilligan: In so far as it is worth anything.

The President: Our experience may be very wide, but it may not cover all the possibilities.

Mr. McGilligan: And does the President intend the Constitution to cover all possibilities?

The President: I think the Deputy should act in debate as other Deputies have acted. We will not be able to carry on if there is to be question and answer across the floor, and if an [1172] answer is to be given before I have finished half a sentence. I make this point, that the distinction between members of the Government as members of the Government and members of the Government as administrators is useful, and that there is no harm in preserving it, and it is being preserved uniformly here. If any situation arose in which it was considered advisable to do so, we can have an Act in which you would have the Departments which have to be administered divided in such a way that it would be possible to have some of the Ministers without the administration of a Department at all. I see nothing lost by having that term “members of the Government.”

Mr. McGilligan: The explanation is that notwithstanding the fact that so many years' experience has never thrown up a case in which this phrase would have proved useful, the President wants to meet all the possibilities the future may throw up. Notwithstanding that argument, vague and unsubstantial as it is, he could still meet it by keeping the word “Ministers.” There is no logic or reason in what he has said.

The President: I see no reason to change the text.

Mr. McGilligan: The man who puts up a document in a deliberative assembly ought to justify it. The onus is on him.

The President: I have justified it.

Mr. McGilligan: You have attempted to do so.

The President: The House has to decide.

Mr. McGilligan: Very good.

Question— “That the words proposed to be deleted stand” —put and declared carried.

An Ceann Comhairle: Amendment No. 32 seems to cover the same point as amendments Nos. 33 and 100.

Mr. McGilligan: Amendment No. 33 is the complement to amendment No. 32.

An Ceann Comhairle: Yes, and amendment No. 100.

[1173] Mr. McGilligan: I move amendments Nos. 32 and 33, which, I think, may be taken together. They are as follows:—

32. In Section 1, sub-section 3º, to delete all words after the word “resignation” line 2 to the end of the sub-section, and substitute therefor the words “of the Government or of any Minister.”

33. At the end of Section 1 to add a new sub-section as follows:—

The President shall on the advice of the Government terminate the appointment of any Minister.

I propose in these amendments to have a division along the following lines. Sub-section (3) reads at the moment

The President shall, on the advice of the Taoiseach, accept the resignation or terminate the appointment of any member of the Government.

That means that the Taoiseach has it in his power to get the President either to accept the resignation, which is a proper matter, or to terminate the appointment of a single member of the Government. I want to break that up in the following way: to have sub-section (3) read:

The President shall, on the advice of the Taoiseach, accept the resignation of the Government or of any Minister

or, as we have it now, of any member. Then, I want an additional sub-section put in:

The President shall, on the advice of the Government, terminate the appointment of any Minister.

I do not want to have a situation in which the Prime Minister, acting by himself and without the authority of the Government or assuming to have the majority of the Government, can get the appointment of a Minister brought to an end. The Taoiseach ought to be able to go to the President and say: “Accept the resignation of the whole Government, which I offer to you, or accept the resignation of a member of it” but, when it comes to terminating an appointment, that ought to be done on the advice of the Government and not on the advice of a single individual.

[1174] The President: On that point, let us consider our whole procedure. When a new Dáil meets, a President is elected who is given the privilege of nominating the other members of the Government. That is the existing practice and that is the practice which is being provided for in the Constitution. It is true that, before appointment, the Government, as a whole, has to be accepted by the Dáil and that it is only when that is done that the appointments of the individual Ministers are made. The whole theory behind that practice, I take it, is that the Dáil puts on one of its members definite responsibility for selecting a team. With that team, he is responsible for the whole conduct of the Government. We have been trying to meet all sorts of possibilities on this Draft. Nobody is going to deny that it might happen that a member of the Government would either make Government work impossible—make it impossible for the Government to work as a team and be jointly responsible—or that it might happen that, for one reason or another, it would be advisable generally to change the team—perhaps by a single member. Suppose such a case arose at present, what means have you of dealing with it? The Government, as a whole, has to come before the Dáil and resign.

I am assuming that the person elected Taoiseach would again be elected Taoiseach by the Dáil. If the Dáil does not like him immediately after a situation like this occurring, they can very easily get rid of him. Nobody can suggest that such a thing as a forced resignation or the determination of the appointment of a member of the Government is a thing that could be done without people hearing about it. A new member of the Government would have to be appointed in his place. The Taoiseach would have to come before the Dáil and make his new proposals and the whole question would come up for discussion. It is not a thing that could be done in the dark for which there would be no redress. At the present time, how can you deal with such a situation? The whole Government resigns and one person only may be responsible for that resignation.

[1175] I think that that is cumbersome and wrong procedure for doing a thing for which there is a direct method. If there were a situation in which the person responsible, in the first instance, for nomination found that one of the persons whom he had nominated made Government work impossible, he should be able to say to that Minister: “Very well, we are not able to get along here as a team. It is clearly right that, holding the views you do, you should resign.” That suggestion might or might not be accepted, but I think there ought to be a simple way of dealing with the matter instead of the cumbersome method obtaining at the present time by which the President would have to come to the Dáil with the resignation of the whole Government because one individual was working quite contrary to the policy regarded as the right policy by the rest of his colleagues. To my thinking, this Article provides simple, straight machinery for doing something which can be done at the present time only in a roundabout manner.

Mr. McGilligan: Look at the amendment?

The President: Yes, “on the advice of the Government.”

Professor O'Sullivan: On a point of order, I suggest that the President's whole speech is out of order. What he has been discussing is the section, not the amendment.

An Ceann Comhairle: There is something in that point.

The President: On the point of order, I suggest that the amendment and the section have to go together. I am talking about the method of procedure. With regard to the point as to the “advice of the Government,” the Government has collective authority. Is it suggested that this question is to be decided by a majority? Was it the practice, when members of the opposite side were in office, to have questions decided by a majority of the Executive Council? If so, I think it was a bad practice. Are we to have procedure like that of [1176] the League of Nations? Shall we have the opinion of all the members except the members affected? Are we to have majority rule or else the decision taken by other members of the Government? It seems to me that that is altogether wrong and that the right procedure is to hold the person who has made these nominations responsible to the Dáil for having a team that will work harmoniously together. If a situation arises in which that cannot be secured, if one member is making common action impossible, then he should be asked to resign and, if he does not resign, his office should, on the advice of the Taoiseach, be terminated. That is not a thing that will be done in the dark. It is obvious that it is a thing that will come before the Dáil immediately for discussion and, if the action of the Taoiseach should appear to the Dáil to be high-handed, there is no doubt they will deal with the matter. I hold that the procedure in the text is better than the procedure suggested in the amendment.

Professor O'Sullivan: I gather that the President objects to this amendment because it is, to his mind, inconceivable that other members of the Government should decide matters. He referred to decisions not being made by the majority of the Government, and he referred, then, to “other members” deciding. The “other members” are the ordinary members of the Government. I take it that he referred to a hypothetical experience in the case of our Government. I gathered from the President's statement that only one member of the present Government decides. Now, that does not seem to me to be a solid argument against this amendment, and still it is the only argument, you will admit, Sir, that has been put forward by the President.

An Ceann Comhairle: The Chair does not admit.

Professor O'Sullivan: I am bound to address the Chair, and when I say “the Chair admits,” I mean in reason. I identify the Chair with reason. I gather that the procedure at present is that there is only one man that counts in the Government. [1177] That is an interesting sidelight on the President's conception of governmental solidarity. I do seriously make the suggestion that if there is a majority of the Government against the dismissal of a member, it is proper that the whole Government should resign and not merely the majority. If there is a majority of the Government for the dismissal of a member, and I presume it is possible that a difference of opinion may be allowed in the Government. It is the normal thing in most Governments but apparently it is not allowed in the present Government, judging by experience, and here I am relying on the arguments put forward by the President. The idea of a difference of opinion is not tolerated there. The fact that a difference of opinion should go by an expression of opinion by each individual member is looked upon as something absurd and not to be thought of. That is all the more reason for pressing this particular amendment, because if that is the practice that obtains in the present Government it should not be perpetuated in the future.

Mr. Costello: One of the outstanding points that struck me about this Draft Constitution, when I read it for the first time, was the very humiliating position in which the Government to be set up under the Constitution appeared. It was given, as far as I could see, a position completely in the background. A further reading of the Draft has confirmed the first impression that I got from this Constitution. I stated last night that our theory of the government of this country was based upon a responsible Government, a Parliament elected by the people, which would in turn elect a Government responsible to that Parliament, and, as a necessary corollary of that particular type of policy, that there should be collective responsibility in the Government.

This Draft Constitution purports in one of its clauses to retain the idea of collective responsibility, but the particular section of the Constitution that we are dealing with now, in my very clear view, goes very far indeed to cut away from this new Constitution the idea of collective responsibility. We [1178] have the provision in Article 13, Section 1, as it stands at the moment, making the Prime Minister the dominant personality in the Cabinet. We have the Government referred to as “the Government” and the members of it referred to as “members of the Government.” In only one part of this Draft Constitution is the word “Minister” mentioned—that is, in Article 28. The members are not even referred to throughout the Draft Constitution as Ministers.

The President: There is a higher title.

Mr. Costello: It seems to me that a distinction was drawn between the members of the Government and the Prime Minister, but whether that be so or not, whether this is unintentional and that I am reading into it something that is not intended to be there, the position under Article 13, Section 1, clearly contemplates that the Prime Minister is to be the dominant factor in the new Government. If that is so, then there is an end to the theory of collective responsibility of the Government. My idea of the collective responsibility of the Government is perfectly clear and perfectly simple. A problem comes up for discussion and solution before the Government. Each member of the Government may have his own views on that particular problem, and each member of the Government, if he is any use in his job, ought to have his own ideas on each particular problem that comes up for discussion and solution. No hope of a proper decision being arrived at can be entertained unless every member of the Government pools his knowledge, experience and views so that a proper decision on the problem may be arrived at. Each member of the Government then, having given his views, having, if necessary, if he feels them so strongly, fought for his views in the Cabinet, and having done his very best to put his own particular views across his colleagues, some point must be arrived at where a decision has to be come to. Each member of the Cabinet having put his views clearly and, I hope, very strongly in fighting for his convictions, [1179] then, if necessary, by a majority vote of the Cabinet, which is good enough for a country, a decision must be arrived at and is arrived at, and when arrived at it is the decision of each and every member of that Cabinet. When they come to fight for their decision, or to implement it, either in the Dáil or in the country, each member of that Government pleads for it, he fights for it and he advocates it irrespective of his own particular views before the decision was come to. He abides by the decision of the majority of his colleagues.

That, to my mind, is the idea of collective responsibility. In practice it is the best type of Cabinet Government that you could possibly have. But the type of Cabinet Government that we have in this Draft Constitution is a Cabinet of one man, the Prime Minister. He is called the Prime Minister, and the others are members of the Government who may be dismissed at his will and pleasure. If he is, as he necessarily must be—to repeat what I said a moment ago—a man of dominant personality, put in that position and with the power that is given to him, it will enable him to impose upon his colleagues, irrespective of their own particular views or convictions—even against their convictions—his own particular wishes and views. Now I think that is not in the public interest. We stand strongly for the pre-eminent position that the Government has in the Constitution at the present time. The Executive Council are the real rulers of this State at the present moment, and they are collectively responsible to this Dáil. They have their own discussions in private, but when these discussions end and a decision is taken they all come here to this House and the country and act as one unit, responsible for the one decision and endeavouring to have the one decision put into effect.

That, in my view, is a very fundamental principle in this Draft Constitution. It links up with the other provisions in Article 12, dealing with the President. As I said on the Second Reading of this measure, there is contemplated in this Draft Constitution a [1180] system of government which ultimately resolves itself into government by two men. That, in itself, is a bad thing, and the consequences may be worse. We must look at this Constitution operating in different circumstances from what they are at the present moment. I think it would be invidious to test this provision in reference to any particular individual, whether on this side of the House or on the other side of the House or on the Labour Benches. We must look at it calmly and in circumstances that perhaps we cannot conceive at the moment, having regard to our own particular lines of policy and our own particular cleavages. But I do say that this Draft Constitution, providing for a President with very wide discretionary powers, and alongside that man another man of equally powerful personality, deriving his authority from the same source— the votes of the people—and being in a position to dictate his views and to override the wishes of his colleagues in the Cabinet by virtue of the threat that is contained in the power proposed to be conferred upon him in this particular provision, is a bad system fundamentally, and one that certainly cannot commend itself to me in any circumstances.

The President: Deputy O'Sullivan seems to think that every question that comes up before the Executive Council or the Government ought to be decided by a majority vote.

Professor O'Sullivan: Not every question—some.

The President: Evidently Deputy Costello has shaken you a bit.

Professor O'Sullivan: I never said “every question.”

The President: Deputy Costello has evidently shown the Deputy a little bit more of what ought to be the true practice.

Professor O'Sullivan: But I never said “every question.”

The President: The fact is that the Government is a team. On the President, who originally was responsible—that [1181] is, the head of the Government, Prime Minister, Taoiseach, call him what you like—on him was placed the responsibility, in the first instance, for getting that unity of thought and ability that would enable the Government to last as a team. Now, what happens in a good team? Let us imagine a Government considering a serious question—a proposition, let us say, of considerable importance, which may have come from one of the members of the Government, as the administrator of a Department, or coming from him as a member of the Government with a view to general policy. Let us take that case. The matter is considered, and every member of the Government will express his views on it as strongly as Deputy Costello suggests. Then, finally, there is the question of a decision. Is somebody going to tell me that if we had, on a very important matter, a division, say, of six to five—that the matter was such that there were strong views expressed by the five and strong convictions held by the five—is anybody going to tell me that, in a case like that, it would be wise to proceed with the proposal? Not at all. What happens in these cases is that the matter would generally be postponed if there was any reluctance on the part of the members, who held strong views, to accept what seemed to be the views of the majority, and it would be foolish in a case like that to strain what I might call the loyalty of the five members to the team policy as a whole by pressing for a decision with a majority of one.

What is done in such a case is that it would be said: “Very well, we do not seem to be of one mind in this matter, so we had better postpone a decision on this until we can get some greater degree of unanimity”; and if the matter were urgent, the President, or the Taoiseach, Prime Minister, or whatever he is, would have to see some of his colleagues, individually, perhaps, and to reason with them, and try to impress upon them, if he were himself one of the majority, the need for acting in a certain way. The decision would not ordinarily be arrived at until there was substantial unanimity achieved. I [1182] hold that that is the best practice, and I hold that it is the practice that any Government would follow. I have heard, of course, of the case where somebody said: “I am in a minority of one, but the minority have it.”

Professor O'Sullivan: Is the President sure that he heard that?

The President: Yes, I have heard it. It is a good story.

Professor O'Sullivan: It is a very good story—if you only heard it.

The President: Well, it may or it may not be actually true, but I have heard of it. The point is this: that if there was a position which the Prime Minister held very strongly, even in opposition to his colleagues, and the situation was that he had to accept, completely and absolutely, something with which he differed strongly enough, he would have to resigned. He could not carry on, because it would mean that he was being forced into a policy which he felt was altogether against his judgment. The same line is open to any member of the Government. No person is bound to remain a member of the Government. If there is a position in which any member of the Government holds very strongly against any combined action that is suggested, he has a way out; but I think there ought to be a way out also to enable the team to work, and if it should happen that one member, or even one or two members, for instance, were completely holding up the work of the Government and taking up the position that they would not agree, and if as a result it was found to be impossible to work with them and carry on as a team, then the situation, clearly, should be changed. At present, it would be changed by the President—the head of the Government—coming to the Dáil and the Government, as a whole, resigning, although it was due, let us say, to the particular attitude that a single member was taking up.

I think that that is wrong. I think it ought to be possible to say to that member: “Obviously, you are not working with us as a team; you do not think the same as we do, and [1183] you are holding up our work, and we think you ought to resign.” Then, if he does not resign, it ought to be possible for the man who is responsible in the first instance for nominating him as a member of the team, to go to the President and ask that his appointment be terminated. As I say, that cannot be done in the dark, because the head of the Government would have to come to the Dáil and explain the situation. Questions would be asked as to why the resignation took place or why the appointment was terminated, and he would also have to face the Dáil on the question of a new appointment. So that it seems to me that, in this Constitution here, you have a simple way by which the thing should be done, and I think the responsibility should be placed definitely on the person and that he should take full responsibility for the person on whose shoulders originally was placed the responsibility of nominating the team.

Mr. McGilligan: Perhaps I might ask the President a question? What meaning does the President take out of the phrase “on the advice of the Government”? Does he think it means unanimity?

The President: I cannot say what it means in the amendment.

Mr. McGilligan: Does the President know what it means elsewhere in the Constitution?

The President: Yes—the same sort of decision you get elsewhere.

Mr. McGilligan: Therefore, it is not unanimity?

The President: It may be.

Mr. McGilligan: But not necessarily?

The President: I would say to the Deputy that the decisions that are arrived at mainly are decisions that are absolutely voluntarily concurred in, and therefore when the views are asked for and obtained—whether it may be six to five or whatever it may be—and when the decision is taken, it resolves itself into a question of asking whether they all agree that such-and-such [1184] should be the position, and, in final effect, the decisions are unanimous. As a matter of fact, I have heard of only one case—I have made inquiries and found that there was only one case— in which a member of the Executive Council of the previous Government asked to be put down as dissenting from a decision.

Mr. McGilligan: Thanks very much. That is very clear.

Mr. Fitzgerald-Kenney: Speech No. 2, delivered by the President, was very typical. Speech No. 1 was very clear and definite. Speech No. 1 let us completely understand the President's idea of the relative merits of the President of the Executive Council and of the other members of the Executive Council. The general tone was that the final decision was the President's; you had everything vesting in the President—the other members of the Executive Council of no importance of any kind, and the President deciding everything. Anything like majority opinion being considered in the Executive Council made the President, in the course of his first speech, almost hold up his hands in horror. Then we had what is very typical of the President— speech No. 2, very long and very verbose, and, to such poor intelligence as I possess, completely and entirely obscure. Now, I think the President might put his mind to considering the amendment before the House. The President does not like it. The President wants complete power to be in the hands of the Prime Minister. He is to dismiss and reappoint any Minister he likes—when I say “reappoint” I mean to appoint somebody in place of the Minister whom he dismisses. That is not to be in the hands of the Government.

The attitude of the President on this amendment, as the attitude of the President throughout the entire discussion we have had on this Constitution, shows that he is a man who, in his heart and soul, is wedded to dictatorship. His idea is that inside the Executive Council you are to have a dictator and though every other member of the Executive Council may think differently from the President of the Executive Council, the President of [1185] the Executive Council is to be the person that counts and the others have got to do what they are told. That is, as is obvious and perfectly plain from speech No. 1, the attitude which he takes up. We do not like that attitude. We believe in collective responsibility and we believe that no member of the Executive Council should be dismissed unless that be the view of the Council as a whole. There is only one way in which a body composed of a large number of persons can act and that is by the decision of the majority of them, if it becomes necessary to have a vote. Unless a majority of that Council agrees that a Minister should be dismissed, that Minister should not be dismissed. The President said, in an endeavour to twist Deputy O'Sullivan's words, that Deputy O'Sullivan had declared that there should be a majority vote on every matter that came before the Executive Council. Of course, Deputy O'Sullivan never said anything of the kind. Persons are chosen and go into the Executive Council because they have the same way of looking at problems. They belong to the same Party. They have got something that unites them and the occasions on which they would differ, or on which there would be any very substantial difference of opinion between them, would be very rare indeed. It is only when some problem of first instance crops up that any possibility of disagreement of a serious nature can arise. The number of occasions on which a matter would be put to the vote would be very few, in any Executive Council, constituted of members who think the same about the State. That the Prime Minister, because he has taken a personal dislike to a Minister or because he may wish somebody else to take the place of a perfectly competent Minister, should, without consulting his colleagues, be able to dismiss that Minister, certainly strikes me as not being the way in which a Government should be conducted.

Mr. Norton: The President, in endeavouring to justify the provisions of this Article, has talked of the desirability of giving the Taoiseach power to deal with a member or members of the [1186] Government with whom it is difficult to work. Of course, in actual practice, that may mean that it is not because it is difficult for the Taoiseach to work with the other members of the Council, but that, in fact, it is very difficult for the normal members of the Executive Council to work with the Taoiseach. The Taoiseach may develop all kinds of peculiar views on particular matters and may desire, in his fanatical enthusiasm for these views, to remove from the Executive Council persons who differ from his views or challenge his right to implement views of that kind. The President, in the discussion on this Bill, is definitely standing for a scheme which makes the Taoiseach the boss of the Executive Council and of the Government. In other words, every other member of the Executive Council holds office at the will and pleasure, not of the Dáil, but of the Taoiseach, and it is possible for the Taoiseach under this Article to remove from membership of the Government any particular member. It is not necessary for that particular member to commit an offence. It is not necessary for him to be a negligent Minister. It is not necessary for him to commit any acts of wilful neglect. All that is necessary under this Article is that the Taoiseach should take a dislike to any member of the Executive Council for any particular reason, whereupon he can tender that advice to the President and ask for the resignation of that member of the Government or have his appointment terminated.

I think it is inevitable that a scheme of that kind will create an atmosphere in which each member of the Government will regard himself as holding office at the will and pleasure of the Taoiseach. That kind of insecurity will inevitably beget an Executive Council, not of the type that is necessary if the collective responsibility of a Cabinet is to work with a reasonable degree of satisfaction. Taking the views which the President has expressed on this section, and comparing these views with the present position, I think there is a much stronger case to be made for the present position, namely, that the Executive Council stands as a unit. If the [1187] Executive Council cannot agree amongst themselves, the Taoiseach should come to the Dáil, resign, and get a new lease of life if he desires a new lease of life, eliminating the obstreperous members of the Executive Council with whom, for one reason or another, the Taoiseach thinks he cannot work. That is a reasonable method of adjusting a difficulty within the Cabinet. I think it is a democratic method of adjusting the difficulty within the Cabinet.

I think the proposal to give the President power to dismiss any member of the Executive Council on the advice of the Taoiseach is giving the Taoiseach unreasonably wide powers which I do not think the Taoiseach as a member of the Government ought to have. I do not think that the Taoiseach should be able to wield such power over his colleagues in the Executive Council. I think the present method is much more democratic. The proposed method is calculated to make “yes-men” out of the other members of the Government, calculated to make them all agree with the Taoiseach whether they like his policy or not. In the interests of the people generally I do not think it is right, certainly I do not think it is democratic, that members of the Executive Council should be dragged willy-nilly after a foolish policy of the Taoiseach merely because if they do not agree the Taoiseach may go to the President and say, “I cannot agree with this person; I think you should get rid of him.” That is an undemocratic procedure, and a procedure which, in my opinion, tends definitely to give arbitrary and autocratic powers to the Taoiseach. To that extent, therefore, it is not nearly as satisfactory as the present method, which I think has the reliable democratic principle of having a Cabinet acting as a collective institution, a Cabinet which stands as a unit and which as a unit advises the President or the functionary to be created under this Draft Constitution. I think, therefore, that the amendment which has been proposed will create a better position than that envisaged in the Draft Constitution. It will ensure [1188] what I think is preferable in the long run, namely, the collective responsibility of the Cabinet as a whole rather than endowing the Taoiseach with the arbitrary powers which he will have under this section if it goes through in its present form.

Mr. MacDermot: There are two questions which I should like to ask the President. The first is whether it is usual for the Prime Minister to have this power of dismissal in other countries where Party government prevails. The second is—this is something which, perhaps, I ought to know but, unfortunately, I do not —have there been any cases, since this State was founded, of Ministers having to be dropped from a Government, and if so, what procedure was adopted in order to drop them?

The President: The arguments put forward by Deputy Norton and some of the other speakers would be all right if they were close up to the facts. We talk about the President acting in an arbitrary way. He cannot act in an arbitrary way. He is not dealing with children. He has a number of colleagues who are grown men. Do you think it would be possible for a Taoiseach, in a purely arbitrary way, to compel the resignation of a member unless there was concurrence on the part of the other members of the Government? Of course, it would be impossible. Again, it would be quite impossible to do that in an arbitrary way, because he is also responsible before the Dáil. In the first instance, you elect one man and put on him the responsibility for selecting a team. That principle is borne out better, in my opinion, when you leave on him the responsibility for maintaining a good team, a team that will work effectively together. In practice there is very little difference, I will admit, between the proposition that has been put forward from the opposite benches and the proposition that is here. In practice they will work out very nearly alike, except that I would say you would have to go very much further than simply having a majority vote. I think that no President or head of a Government would be likely to ask [1189] a Minister to resign on getting merely a majority vote of the remaining members.

As I say, here you will again have the difficulty as to what you mean by the advice of the Government. I do not want to see the advice of the Government restricted to being mere majority advice. My own view is that it ought to be advice given after decision, in the same way as other matters are decided. Those other matters are generally decided by taking the views first and trying to get a common view. If a decision cannot be arrived at with substantial unanimity you postpone the decision, if it can be postponed, and let the matter be further considered until a situation is reached in which you can get at this unanimity. I do not think that, even though the head of the Government found he was supported by six out of 11, he would care to take the responsibility of compelling the resignation of a member. Well then, there is in fact not very much difference between the two, except for the meaning of “the advice of the Government.” When you put on a man the responsibility of collecting a team, is it not better to put on him the responsibility definitely before the Dáil of keeping it together and seeing that it is of a proper character?

On this particular section, if there is a general feeling that you should get concurrence, I am not going to quarrel with it. My only trouble is that he himself is a member of the Government until the removal. What do you mean then by concurrence on the advice of the Government? We will suppose, according to this amendment, that the Taoiseach goes to the President and says: “We are not able to get along with a certain member. His views and ours are quite at variance.” Or let us take another position in which the duties of the office were not being properly performed. The Taoiseach would go to the President and say: “I have asked this man to resign and he will not resign. The remainder of my colleagues, or such a number of them, agree with me in this.” Ordinarily, I take it, that would be the position. Except that it introduces a certain complication, I think in fact it will [1190] amount to the same thing. I should be prepared to take it, if we could avoid this complication as to what is meant by the advice of the Government. Clearly the Government is not acting as a unit, because here is one man standing out. We will take it he has refused to resign. He is, therefore, standing against the opinion of the Government as a whole, and you cannot speak of the Government as a unit in that case. That is the complication I see if we accept the amendment.

Mr. Norton: Is it not possible, as this is framed, for the Taoiseach to take a personal dislike to a Minister, and, without concurrence, go to the President and say: “I want you to get rid of him”? That is possible under a strict reading of this.

Mr. McGilligan: Clearly it is.

Mr. Norton: If it is possible to do it, we ought to try to prevent that possibility from becoming a probability.

The President: I can only say that if such a thing happened it would simply mean that that was the end of that Government. The Deputy has worked with colleagues on various committees—committees where there is a certain amount of responsibility, although not perhaps as definite a collective responsibility as there is here. Can the Deputy think, if he had power to remove one of his colleagues, that he would dare to do it in an arbitrary fashion? He would know that he would immediately be resisted by the other members, who would say: “It may be my turn next.” Obviously he could not do it. Certain circumstances in which he could do it are completely and absolutely visionary. They can be conjured up by anybody of imagination, but do not in reality exist. However, I am quite prepared to accept it, if we can get over this difficulty as to what is meant in those circumstances by the advice of the Government.

Deputy Costello has been talking about practice. I have no fault to find with his explanation as to what is good practice, except that he seems to [1191] lay more stress upon a majority decision than I would. His view, as far as I understand it, is that there are six one way and five the other, and the five will have to concur. I think the cases where that would be done would be very rare. Otherwise you are straining the point.

Mr. Costello: I agree.

The President: Therefore, I think the Deputy will agree that a good practice would be this, to try to get unanimity. At least, get this point: if the majority were agreed, that here was one man who was going, as a result of a decision of that sort, to be dismissed from the Government or to leave the Government. Is it not pretty obvious, as in the case of the League of Nations, where there is one that you cannot count on, that you have to get away from what might be called common practice, and say that in this particular case we are going to work by majority vote? That is the only difficulty I see in accepting the amendment. In practice a good head of a Government, a good captain of a team, will work in such a way that he will not strain what I might call the loyalty of any member of the team. That is the difficulty to be cleared up.

Mr. McGilligan: I would like to find out what the difficulty is, as the phrase occurs right through this Constitution. We envisage a situation in which there has been a division within the Cabinet and a man has to go. Are you heeding to any extent the fact that there is a cleavage inside? You are revealing it when you say he is dismissed on a division.

The President: It is not revealed.

Mr. McGilligan: A whole lot of things are done on advice. That means unanimity, or what?

The President: It generally means unanimity, and should mean unanimity.

Mr. McGilligan: If the Taoiseach finds himself with a team badly divided on a matter, he has later to advise the President, but he does not say what the division was.

The President: He should.

[1192] Mr. McGilligan: Is there any harm, when he goes to the President to get rid of a man, in saying that he has the entire Cabinet with him, except this recalcitrant gentleman?

The President: No.

Mr. McGilligan: You have to contemplate two situations after all the verbiage, one in which there is a division in the Cabinet and the Taoiseach slips off to the President and says “dismiss that chap” and he goes; and the other where it gets to the point that he must ask for the resignation of such a man from the Cabinet and his office terminated. For some reason or principle that man says: “I cannot give in” and then the Executive Council takes a decision. Surely that is a better situation than to have the Taoiseach slipping off to the President and getting this man removed. Remember, the new situation is most amazing. The Taoiseach has not to face the Dáil and to ask for the appointment of new Ministers. We do not know what is going to be the situation with regard to law and the designation of Ministers for these posts. It may mean that the Taoiseach may have power to change Ministers from Department to Department without coming to the Dáil. There might be a situation that the man dismissed may be a member of the Government, but has not a Department when there is no necessity to get anyone to fill the office for Departmental reasons. Someone may raise the point. If there is a Party backing the Government that does not want that matter made an issue and dragged out in the Dáil, by a majority vote they can quash raising the question. If we had the old situation, by which men assigned to Departments were assigned by the Dáil, and you had only men in the Cabinet with departmental duties, then the whole thing would be in the open. That is not the situation that must arise. It may arise. Between the two situations Deputy Norton's argument has put the position very succinctly. Are you looking for a situation in which a man like the Taoiseach is going to play up to that, or to sink his responsibilities to the [1193] country? I think you are going to have better ideas of duty if you do not have them under the thumb of the Taoiseach.

The President: This question of going to the President is absolutely ridiculous. In practice it could not arise in that way. I said at first that the colleagues of the Taoiseach are grown men. They would not have been approved by the Dáil, as they have to be in the first instance, if they were going to be people of that character. They have to be selected from their own Party, and the Party has generally got to support its election. Otherwise, the whole system would break down. In the nature of things, there should be no such thing as running off to the President to get him to dismiss one of the members of the Government. The net point is this, that when advice is given—the word advice occurs in the text—that advice is given by men and is a decision by the Executive Council in which every member concurs.

Mr. McGilligan: It does not.

The President: In fact he takes responsibility the moment it is given. He may have been opposed to the decision before it was arrived at, but the moment it is given he must concur. Otherwise you have not the decision that Deputy Costello wants, when he said, irrespective of what views they held before the decision was taken, they have to take personal responsibility for it in the country and in the Dáil. It is clear that the decision can only be arrived at when you have substantial unanimity in the Executive Council and the Government. I am not stating that the decision is such that every member of the Government will agree with it. You will not get that concurrence in the case of a man for his own removal. Therefore, you are vitiating in that particular case, and holding up to doubt the idea that the advice when given is a decision, and that the decision means the concurrence of every single member of the Government. The theory, based on the old Constitution is this, that in selecting one man, and holding him responsible for keeping the team together, [1194] that that is the principal duty of the head of the Government. If there are six and five he may have to go and talk to the five and, if there is an important decision, try to bring them to the point of view the majority has taken. He has to try to get that concurrence which I say is vital when a decision is taken. The amendment breaks through that idea. That is my principal objection to it. In practice, I say the same result will be arrived at.

It is a terrible mistake to suggest that because the head of the Government selects the team, he is in the position that his colleagues are only “yes-men.” The position to be arrived at is one in which they look to him for responsibility to keep the team together. If a certain member was not pulling his weight in the team, he would be the person who would have to talk to that member, to reason with him and to try to get him to work with the team. Finally, on him would be the responsibility of giving advice. He would not give that advice without concurrence. I am not sticking out for this point at all. If I could get some way of avoiding it I would. In this case you are clearly showing the country you are giving advice by a majority vote. It might involve two members. There again you have a situation in which it is very difficult to get the idea that the advice is given with unanimity, from the point of view of concurrence. That is my only objection to it. Deputy Costello said that when he first read the Constitution what struck him was the humiliating position in which the Government was put. Does the Deputy seriously hold that opinion in view of the document that is in front of him? Does he not see clearly that all executive power is in the hands of the Government, that it is their will and their decisions? In fact, if there is a fault to be found with the Constitution I would say the fault is this that there is still too great power in the hands of the Executive or Government of the day. That will be found from what I might call the democratic point of view. I stand for it because I think it is necessary for the conduct of business in the State that there should be a really strong Executive. Because I take that view [1195] of a strong Executive, I do not think the Deputy could honestly hold that the Government is in a humiliating position.

Mr. Costello: Perhaps we might answer the President on that point. Instead of using the word “humiliating,” if I had used the word “second rate” or “third rate” it would perhaps more clearly have expressed the view. I still maintain perfectly honestly on the Draft that, if the President gives way on the suggestion we are making, then he meets my objection to a certain extent. I will be perfectly frank with the President. I found a new system created consisting of an Uachtaran who had certain very wide powers which he could exercise at his own discretion, and other powers which he exercised on the advice of the Government. I had no objection to those. When I saw that the President would have power to exercise certain powers on his own discretion I, of course, included in that at all those powers and functions which he exercises after consultation with the Council of State. The President admitted that that phrase is nonsense—that it means nothing.

The President: No.

Mr. Costello: Therefore, I found that the new functionary had very wide powers. I then found a provision enabling the Oireachtas, by law, to confer more powers on him. Then I came to the conclusion that this new functionary was going to be some very great all-powerful person in the State, or could be, in certain circumstances. That is how we have to test the Constitution. Looking here, I found that the word “Minister” is only used once in the Constitution.

The President: What is the meaning of the word “Minister”?

Mr. Costello: I am not right in saying it is not used more than once, because it is used in connection with the Prime Minister, the word “Minister” is only used once, and that is in Article 28. Then I found here the Article which we are discussing—that they hold office at the will and pleasure [1196] of the Prime Minister. The Prime Minister is the boss. We have then two bosses, the President and the Prime Minister, and they can run the whole State between them. The President may shake his head. He cannot get into his head that what is happening now will not continue to happen for all time. Let us forget the present and try to project our minds into some future time when he will not be here, and I will not be here, and certain other people will not be here. That is how we have to face the Constitution. In that state of facts, viewing the Draft Constitution as a whole, it appears to me perfectly honestly to be a two-man show. Some people take it as a one-man show. It can be turned into a one-man show. But the scheme as it appeared to me on analysis was a two-man show—the President and the Prime Minister. The dangers will arise if they coalesce into a one-man show or——

An Ceann Comhairle: I wish the President or the Deputy would show the Chair where that is related to the amendment.

Mr. Costello: I am speaking in answer to the question of the President, and if the Chair thinks I am out of order I shall not proceed with it further.

Mr. H. Flinn: It seems to me that we are fighting a lot about words in this particular case. A very excellent explanation was given by Deputy Costello of the suspicions which are in his mind and the atmosphere in which he comes to examine this. If one does go through the Constitution in a spirit of cumulative suspicion, then one is bound to regard every single clause of this Draft as something which has about 15 niggers in a wood pile behind it. The net point is this. The Opposition say that, as the clause is now drafted, they think it could read that this advice for the acceptance of the resignation of a Minister might be the irresponsible personal act of an individual, and they say that should not be so; they say it should be the act of the Government. The President has told us that the meaning he attaches to it [1197] is that it should be the advice of the Taoiseach, with the concurrence of the Executive Council. The difference between the two is extremely small. It is only a question of finding a method of commonly agreed expression. One could use the term, “with the concurrence of the Government”; one could use the phrase, “on the advice of the Government.” The President has a technical objection to the phrase, “on the advice of the Government,” in the sense that it would not be the advice of every one of them, in so far as it would involve someone who had already refused to co-operate. I take it that all that remains between us is that some phrase will be found which will, without involving that technical difficulty which the President has in his mind, fulfil what is the wish both of the President and of the Opposition in the matter. We might leave it at that until the President has an opportunity of seeing whether some such suitable commonly agreed phrase can be found for it.

Mr. McGilligan: I do not understand the rubbish talked about the difficulty of phrases. What are we facing? The position in which there is a cleavage in the Cabinet. The two solutions are: (1) the Taoiseach goes off to the President and gets a man removed from his office; (2) the Taoiseach goes up and says, “I am not doing this on my own; the Executive Council are behind me.” In both cases there is clearly contemplated, from the very circumstances, a division. What is the good of talking about getting a phrase that will hide that division? No man in his senses could speak in these terms in face of these circumstances. The facts themselves shout aloud that there is disagreement of some type.

What is the good of saying that a phrase which ordinarily means the advice of the Government—there is nothing new about concurrence— mainly through the Constitution, demands either concurrence or acceptance of something by more than a bare majority, when there is clearly a cleavage? The circumstances demand an explanation to the people that there is a cleavage that cannot be [1198] hidden for any length of time. Within an hour after the Taoiseach has walked down from the President, after getting a man dismissed from his office at his sole request, the news is out. There is no great sanctity in this phrase, “on the advice of the Government.” There is nothing in its use in the Constitution that indicates that there is to be virtual unanimity among the Cabinet when there is advice of such a type given. If there are the circumstances of a man being dismissed, what is the good of saying that the phrase is distorted when clearly the dismissal implies that there is a man who is reluctant to go and has to be forced to go?

As to the powers of the Taoiseach and the powers of the President in this Constitution, to what Deputy Costello stated I only want to add this: that the new Constitutions of Europe, in regard to one particular power of the President, attracted such attention that certain literature has grown up on that point. I have here one small book written in regard to all the new democratic Constitutions. It was written in 1928 and deals with the Constitutions of eight States and marks out as the common point in the whole lot the weakening of the Executive and the granting of powers outside the Executive either to Parliament or to the President, but in the main to the President. It has to be noted that that book was written in 1928 and republished in 1929, and eight Constitutions were referred to. In five cases since the book was written Parliamentary government has been suppressed because of the powers given to the President.

Mr. Norton: I think the President is conjuring up needless difficulties in connection with this matter. He has told us of a situation where five members of the Executive Council might take one view and six members might take another view, and it is consequently necessary to abandon the proposal, whatever it may be, until such time as the President of the Executive Council convinces the minority that they ought to agree with the viewpoint of the majority. That, I take it, is dealing with the ordinary [1199] proposals for legislation of a positive or negative character. I do not think that the situation at all fits in with the set of circumstances envisaged under Article 13. Here we are considering the question where an obstreperous, recalcitrant member of the Executive Council either will not work with his colleagues or attend to his Parliamentary duties and has adopted an attitude which is bringing discredit on the Executive Council. It would be the desire of everybody that, in these circumstances, that person should be got rid of. The method of getting rid of the person is the issue that is causing this discussion. I want to ensure that if he is to be got rid of he is to be got rid of on the advice of the Government, and that it would not be within the scope of possibility that the Taoiseach should go to the President and say, “I have had a quarrel with the Minister of a particular Department, who has said things that have wounded my feelings, and I feel now that I can no longer work with that Minister.” In such circumstances, if this Article remains as at present, the President will have no option but to accept the resignation of that particular Minister, even though the majority of that Minister's colleagues might take the view that the Taoiseach was wrong in his action.

The President says he is dealing with grown-up people. It is because he is dealing with grown-up people that it is even possible to remedy that situation. A lot of members of the Executive Council may say: “I do not think the Taoiseach had any right to go to the President on that matter; it was a storm in a teacup; the Taoiseach was unnecessarily vain and impetuous, the thing would have blown over and would be all right.” But they would also say at the same time: “Much as we regret what the Taoiseach has done, there is the Party and the Government to be considered; the political situation is none too good at the moment, and in these circumstances while we might like to tell the Taoiseach what we think of him, having regard to the bad political situation outside and to the fact that our stock is running low and the probability [1200] that, with all his idiosyncrasies, he is the best Taoiseach that we could get, we have to put up with this attitude of his.” The more grown-up men are and the more mature they are, the more likely they will be to take that line. If they were young, impetuous men, you might not be able to restrain them. Their maturity is the best possible guarantee that they will not cause any upheaval. The President says he is afraid that the advice of the Government would mean that it would have to be the unanimous voice of the Government or that every member of the Government would have to agree. Probably the fact that the Taoiseach would have to go to the President would be evidence that you could not possibly get agreement on an issue of that kind. The fact that the Taoiseach finds it necessary to ask for the removal of one man would prove to everybody that there is a row in the Cabinet. It would be impossible for anyone to imagine that the person who was going to be made the victim of the Government's wrath would say: “Very well, I propose to agree to the views of the Executive Council, who propose to carry out this political execution on me.” The member of the Government is never likely to consent to that kind of thing, to consent to ending his political career. He will fight to go on remaining there. If there ever was a case for going to the President and saying “by a majority, the Government give you this advice,” this is the case where it can be justified. A democratic Government could not dream of allowing an obstreperous Minister to prevent the will of the Government being given effect to. We have no fears whatever that there will be any commotion or riot in the country if the Taoiseach went to the President and said: “The members of the Government want this Minister removed; the decision is not unanimous.” If the Taoiseach said that to the President, the President would be an imbecile if he did not appreciate the circumstances, and the country would appreciate that in circumstances like that the Taoiseach never would get unanimity. He would have to take the next best method, which was to get the greatest possible measure of unanimity [1201] in favour of the removal of the Minister. The President would have to face up to the position of taking the advice of the Government instead of the advice of the Taoiseach. The Taoiseach might say: “I have got ten-elevenths of the Government in favour of my proposal.” There would be small difficulties compared with running the risk that the Taoiseach would say that this Article was drafted in order to give vent to the wrath of one member of the Executive Council. You could alter this Article to read: “The President shall on the advice of the Government tendered by the Taoiseach accept the resignation ... of any member of the Government.”

Mr. McGilligan: I have met that in amendment No. 32. The resignation is a matter for the Taoiseach.

Mr. MacDermot: I am sorry that no one has given us the enlightenment I asked for as to how Party government works elsewhere. I am under the impression that the system in Great Britain has developed so that the Prime Minister takes the sole personal responsibility in such matters as this. I am not impressed at all by what Deputy Norton has said about the probable attitude of the Ministers towards arbitrary or irresponsible action by the Prime Minister. I think if such action took place at any time, if the Ministers are worth their salt, they would resign rather than put up with it. The Deputy said there might be circumstances in which they felt it necessary to retain the Prime Minister and keep up his prestige and they would not resign. Our reply in that case is that this stipulation about advice by the Government has no value because all the Prime Minister has to do is to call his Government together and say: “I want you to get rid of that man; I dislike him so much that either he goes or I go.” If the Ministers are to give way in one case they would obviously give way in the other case. I suspect the personal responsibility of the Prime Minister is the system that has in practice proved itself best. Take a concrete case. Supposing at the time of the Budget scandal last year Mr. Thomas had [1202] refused to resign, would it not be better if the Prime Minister had power to call on him to resign, rather than that the Cabinet should be called together, a vote taken and his fate decided by a majority of the Cabinet? It seems to me that that is creating an unnecessary and undesirable amount of unpleasantness and in this personal relationship some one man in the Cabinet ought to have chief responsibility and that one man should be the Prime Minister, and the security against arbitrary and unjust and irresponsible action by the Prime Minister is, as the President has said, the character of his colleagues.

The President: I would like to point out that Deputy Norton clearly misses one point. It is not that a division is revealed at the moment; it is this— that advice, by the fact that it would be tendered there in the special case where it may have to be got by the majority vote, is generally weakened; the character of the advice generally is weakened; it is attacked on what I regard as of great value, and that is that, when advice is given from the Government, it must be advice in which all the members of the Government concur.

Mr. MacDermot: Collective responsibility?

The President: Collective responsibility, and it strengthens the idea which was expressed, I think, by Deputy O'Sullivan—“Go and get the majority vote and get done with it; it is all fixed; you have a majority vote.” That is wrong. That is bad practice, and I would hate to see anything in this Constitution which would suggest that when advice is given it is simply advice determined by a mere majority vote. I would like to have the idea that when advice is given it represents the view, or a decision, in which all the members of the Government at the time concur. I will not say anything more about it.

Mr. McGilligan: Then I hope to have the President's assent to amendments which I will submit on the next stage—that everywhere advice [1203] occurs it will be unanimous. I will test that view of yours.

The President: This is quite a different thing.

Mr. McGilligan: I understood the President was holding this matter over for consideration?

[1204] The President: No.

Mr. McGilligan: Does the President want it divided on?

The President: We have to get a decision. We must make progress and, apparently, we cannot get progress by putting off everything.

Question put: “That the words proposed to be deleted, stand.”

The Committee divided:—Tá, 48; Níl, 28.

Aiken, Frank.

Allen, Denis.

Blaney, Neal.

Boland, Gerald.

Boland, Patrick.

Bourke, Daniel.

Brady, Seán.

Breathnach, Cormac.

Breen, Daniel.

Briscoe, Robert.

Cleary, Micheál.

Concannon, Helena.

Cooney, Eamoan.

Crowley, Fred. Hugh.

Crowely, Timothy.

Derrig, Thomas.

De Valera, Eamon.

Flinn, Hugo V.

Flynn, Stephen.

Goulding, John.

Harris, Thomas.

Haslett, Alexander.

Haves, Seán.

Kelly, James Patrick.

Kelly, Thomas.

Lemass, Seán F.

Little, Patrick John.

Lynch, James B.

MacDermot, Frank.

McEllistrim, Thomas.

Maguire, Ben.

Moane, Edward.

Moore, Séamus.

Moylan, Seán.

Murphy, Patrick Stephen.

O Briain, Donnchadh.

O Ceallaigh, Seán T.

O'Reilly, Matthew.

Rowlette, Robert James.

Ruttledge, Patrick Joseph.

Ryan, James.

Ryan, Martin.

Ryan, Robert.

Sheridan, Michael.

Smith, Patrick.

Traynor, Oscar.

Walsh, Richard.

Ward, Francis C.

Níl

Bennett, George Cecil.

Bourke, Séamus.

Cosgrave, William T.

Costello, John Aloysius.

Desmond, William.

Doyle, Peadar S.

Everett, James.

Finlay, John.

Fitzgerald, Desmond.

Holohan, Richard.

Keating, John.

Keyes, Micheal.

Lynch, Finian.

McFadden, Michael Og.

McGilligan, Patrick.

McMenamin, Daniel.

Minch, Sydney B.

Morrisroe, James.

Morrissey, Daniel.

Mulcahy, Richard.

Nally, Martin.

Norton, William.

O'Higgins, Thomas Francis.

O'Leary, Daniel.

O'Sullivan, John Marcus.

Redmond, Bridget Mary.

Reidy, James.

Rice, Vincent.

Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Doyle and Bennett.

Question declared carried.

An Leas-Cheann Comhairle: I take it that that decision covers amendment No. 33?

Mr. McGilligan: Yes.

An Leas-Cheann Comhairle: And amendment No. 100?

Mr. McGilligan: I understand that amendment No. 100 is bound up with it, but I am not sure. However, I will accept your ruling on it, Sir. I move amendments Nos. 34, 35, 36 and 37:—

34. In Section 2, sub-section 1º, to delete the word “Taoiseach” line 2 and substitute the word “Government”.

35. In Section 2, sub-section 2º, to delete the words “may, in his absolute discretion, refuse to” line 1 and [1205] substitute therefor the words “shall not”.

36. In Section 2, sub-section 2º, to delete the words “Taoiseach who” line 2 and substitute therefor the words “Government which”.

37. In Section 2 to delete sub-section 3º.

Section 2 of Article 13 deals with the very important matter of the dissolution of the Dáil. It also deals with the summoning of the Dáil, not so important a matter, but still of importance, and particularly so when joined with this very important matter of dissolution. As Section 2 stands, the President shall dissolve and summon Dáil Eireann on the advice of the Taoiseach. Secondly, the question of a Taoiseach who has ceased to retain the support of a majority in Dáil Eireann, and has power to get a dissolution, emerges. The phrase in Article 2 is so cast as definitely to convey the meaning that, ordinarily, a Taoiseach who has failed to command the support of a majority in Dáil Eireann ought to get a dissolution if he demands it, because the phrase has suffered the peculiar twist that the President may refuse to grant a dissolution to such a Taoiseach, that is, a Taoiseach who has lost the support of the majority in Dáil Eireann. Then, finally, we have the smaller matter that the President may—and I am reading that as “at his own discretion”— convene a meeting of either or both Houses of the Oireachtas, because the phrase has it that he may do it “after consultation with the Council of State.”

That position is to be contrasted with the present position which, I think, is the democratic one. The ordinary position is that the dissolution of a representative House is under its own control. The summoning follows almost as a matter of course. It is a smaller matter but it is generally under the control of that representative House also. It has been a constitutional provision in this State since the beginning that the head of an Executive Council who had lost the support of the majority of the House could not demand a dissolution. In contrast to that, we [1206] have sub-section (2) of Section 2 of Article 13 which, from the way the sentence is thrown, conveys the implication that even a Taoiseach having lost the support of the majority of Dáil Eireann should be able to get a dissolution. I think that is wrong. I think the present position, in which there is an absolute prohibition against the head of an Executive Council who has lost the support of the majority in Dáil Eireann getting a dissolution, is the correct position.

As far as the first paragraph is concerned, I have got considerable enlightenment from the last argument, because I gather that the President's view of phraseology in this Constitution is that where the phrase “on the advice of the Government” occurs, there is implied virtual unanimity of the Government, but where the phrase “on the advice of the Taoiseach” occurs, so far from there being any implication of a unanimous, or virtually unanimous, view of the Government, the phrase is used where the Taoiseach is acting more or less off his own. Certainly, there is no context of unanimous support, or virtually unanimous support, for the Government, so that the new situation proposed in the Constitution is that a dissolution of the Dáil could be demanded by a Taoiseach, even though he had lost the support of the majority of his colleagues, and, secondly, a dissolution of the Dáil may be demanded, and the implication of the framework of the sentence is, “and should be granted,” to a Taoiseach, head of an Executive Council, who has ceased to command a majority in Dáil Eireann. That is completely against the ordinary constitutional provisions as known in the Constitution; it is against the practice; and I wait to hear the argument to be put forward for the change proposed.

The last point is why should the President at any time be given power —after meeting this body, the Council of State, his own bodyguard of yes-men whom he simply must call together, hear the views of the members and then can completely disregard their views—to convene a meeting of either or both Houses of the [1207] Oireachtas? This Parliament has been enabled, through its Standing Orders, to secure a speedy summoning of the Dáil to meet an emergency situation. We can carry on with that. I do not see any reason for the intervention of this outside person.

Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present,

The President: I have been asked to explain why the existing system is to be changed. My answer to that is that the existing system is, in my opinion, a bad one. Let us take this question, in the first place, about advice by the Taoiseach alone. I hold that it is very much better practice that, in this matter, the responsibility for giving advice should be placed on one pair of shoulders—the shoulders of the Taoiseach. He may find a division in the Executive Council. If he were to consult the Dáil he would be bound to find a division of opinion and possibly if a vote were taken in the Dáil at any particular time, there would be no dissolution at all. There may be big questions on which it is advisable, in the opinion of the person who has the chief responsibility placed upon him, that the opinion of the country should be got. Again, we have to take the actual situation. He is, in all probability, the leader of the dominant political Party. There is no use in pretending that, in this case, he is taking arbitrary action, because, if there is going to be an election, the whole position with regard to his Party is going to be settled by the vote taken at that election. Considering the situation as a whole, he may come to a decision which would be supported by, let us say, parts of the organisation which might not necessarily correspond with the division the Government of the day. Ordinarily, as in the other case, be would not face such a situation without getting substantial unanimity. But it may not be possible to do that. There may be a question in which the Cabinet itself is divided. From his view of the difficulties of the question that is to be settled, he may come to the conclusion that his proper duty is to [1208] let the people decide. Therefore, I think that, in this case also, it is advisable that the dissolution should take place, or be given on the advice of the Taoiseach.

The first point of difference is that, whereas a dissolution would be given on the advice of the Government, according to the amendment, it is, according to the Draft Constitution, to be on the advice of the head of the Government. The next point of difference is: In this Constitution, a Government that has failed to have a majority can ask for a dissolution. I hold that that is right because, if we are going to accept the principle that the people are ultimately to judge, there can be no objection to the people being asked to decide. Therefore the power given here is simply the power of saying that a situation has arisen in which the people themselves ought to decide and not merely the majority in the Parliament. You interpose the will of the President, and the President has no discredion if the Taoiseach and the Government of which he is the leader have the majority. The President cannot intervene in these circumstances; he has to give the dissolution. But if the Government should happen to be defeated on a particular question and they felt that that was a question in which their view, although they were a minority, would be held by the people as a whole, I think it is right that a dissolution should be possible.

We have to take the circumstances in which it would be reasonable that a dissolution should be given and the circumstances in which it would not be reasonable that a dissolution should be given. I grant you that there are certain circumstances in which the leader of a Government, or a Government, should not be given a dissolution but there are circumstances in which they should. In order to try to distinguish between these two cases, we bring in a third person, so to speak, as arbiter. He will give his decision and grant a dissolution, or refuse it, at his own discretion, having heard the views expressed on the matter by the Council of State. Again, I lay stress on the fact that the function of the Council of State is simply to make the [1209] President aware of the possible consequences of his action and of the matters which he should bear in mind before he arrives at his decision. There is no use in putting that aside with a wave of the hand as if it were of no consequence. Let us assume that the President is a just man who wants to act fairly and wisely. He will, undoubtedly, give great weight to the views expressed by the Council of State. He has to give his decision having heard those views. That does not preclude the possibility, having heard these views, of his giving a dissolution where other people might say a dissolution should not be given. In this case, I have just been reminded that the President acts without the Council of State. The question is whether the Council of State should come in in this case or not.

Mr. McGilligan: It does not matter.

The President: It does matter very much. We must assume that the people elected to office are not all the time trying to do wrong things, but that they are properly carrying out their duties and acting with justice. But a man may be very just and fair, and yet may not be able if he were alone to make up his mind: to see all aspects of the particular question or the possible consequences of a particular line of action proposed. That is the value of the Council of State. The reason why the Council of State is not put in here is this, that when the Taoiseach who is defeated goes to the President, if he is told straight off “I cannot give you a dissolution; the circumstances under which you have been defeated are such that I do not think there is any question which should be put to the people,” he may be prepared straight away to say: “Very well, we need go no farther with it.” But, ordinarily in the Council of State, you will have members of the Opposition. Consequently, if he asks for a dissolution, the fact that he is looking for it, and has been refused, will become known, and there would be greater confidence between them if he goes and says to the President:“I think the circumstances are such in which I should have a dissolution.” The President would probably [1210] not give him an answer then but would consult some members of the Council of State, the members of the judiciary perhaps, as to whether in these circumstances it would be wise to give a dissolution or not. If there is any question of putting in the Council of State there, I have no objection to that.

Mr. McGilligan: Putting in the Council of State, where?

The President: After consultation with the Council of State: where a Government that has been defeated does not command a majority and the Taoiseach asks for a dissolution from the President.

Mr. McGilligan: Does the President suggest that we should put in the Council of State there?

The President: If there is anybody on the opposite side who wants it.

Mr. McGilligan: Nobody on this side wants it.

The President: The question does not arise then. The President, although he is not obliged in this case to consult the members of the Council of State, would, in fact, consult, say, the members of the judiciary, so that he might see all the pros and cons with regard to the decision that he was asked to make. Consequently, I think this is a better practice because there can hardly be a doubt that a situation will arise, or may well arise, in which a Government may be very narrowly defeated and in which the view taken by the minority would be that taken by the country as a whole. You are here then enabling the possibility of an appeal being made to Cæsar, namely, the people.

The third matter is the meeting of the two Houses, the right to cause the Houses to be assembled. Now, circumstances may well arise, at least so. we were told very often in recent months by members on the opposite benches where a Government may try to do things and not summon the Dáil. Deputy McGilligan now tells us that we have the Standing Orders and that they are adequate. That is a curious reversal of attitude because laws were not good enough before. Now, we have Standing Orders, and we are told [1211] they will be good enough to meet the situation. This is a situation which, in my opinion, ought to be met by the Constitution and the Executive, no matter what may be said from the opposite benches, is being given tremendous powers in this Constitution. If an Executive was doing something which it was felt they could not do if they were faced with Parliament, I think again that you are not giving extraordinary powers to the President if you give him the right to cause Parliament to assemble. He only brings the supreme legislative body into session. Surely there can be no objection to that. He is not likely to cause Parliament to meet and face the humiliation of being told by Parliament that his calling of it together was unnecessary and not proper. You are providing the safeguard that the Executive, which is responsible to Parliament, will have to face their masters under any circumstances in which the President thinks it is right that it should be done. These are the three points that were raised, and these are the explanations that I have for the text as it stands.

Mr. Haslett: There is one point that I would like the President to deal with. In sub-section (2) of Section 2, Article 13, it is provided:

“the President may in his absolute discretion refuse to dissolve Dáil Eireann on the advice of a Taoiseach who has ceased to retain the support of a majority in Dáil Eireann.”

Are we to visualise that as meaning the Taoiseach personally, or is that to be taken as embracing the whole Executive Council?

The President: No, the Taoiseach personally.

Mr. Haslett: If that is so, I think that provision would need to be amplified. Suppose the Taoiseach had ceased to retain the support of a majority of Dáil Eireann in his personal capacity, should there not be a further provision, when you give the President an absolute discretion to refuse a dissolution, [1212] to enable him to get Dáil Eireann to appoint a new Taoiseach.

The President: I take it that, if the Government has failed to secure support and faces the Dáil again, a new Government would be elected. For instance, if there was a measure which was regarded by the Government as one of primary importance, one which they felt it was essential they should get if they were to continue in office, there might be the question of getting a vote of confidence. If they felt that in those circumstances they could not, in fact, get a vote of confidence in the Dáil, then the Prime Minister would go to the President and say: “Our Government has been defeated on a measure of primary importance, and if I go for a vote of confidence on this question I do not think that I can get it, but the matter on which I have been defeated is of such a character that I am satisfied that if the people, the ultimate court for deciding these matters, got the opportunity they would decide in my favour.” Under these circumstances the President has the right to say to him: “Well, you were defeated, and I am not going to give you dissolution.” What, then, would be the position of the Taoiseach? He would go back to the Dáil and resign because obviously he could not carry on if he has to face a Dáil in which he is in a minority. It is stated here definitely that he has to resign if he fails to command support in Dáil Eireann. Therefore, the position for him was that he had to resign. Dáil Eireann would proceed to elect another Taoiseach and there would be a new Government formed. That is the position on that hypothesis.

On the other hand, if he goes to the President, and the President agrees with him that the situation is one in which the people ought to be given an opportunity to decide the question, he can say: “Very well, you prepare the proclamation and I will sign it, and we will dissolve Parliament. Then there is an election on that issue, and the electors will settle whether the Taoiseach, when he comes back, has a majority to carry on, or whether he is in a minority. What that simply means is that we are making provision in the [1213] Constitution for the possibility of referring a question of primary importance, on which the Government has been defeated, to the people for a decision.

Mr. McGilligan: And others will hold the contrary view, and say that such a power should not be given, but I hope I have made it clear what will happen if a dissolution is refused.

Question—“That the words proposed to be deleted, stand”—put and declared carried.

An Leas-Cheann Comhairle: That governs amendments Nos. 35, 36 and 37.

Mr. McGilligan: I move amendment No. 38:—

In section 3, sub-section 1º, to delete all words after the word “shall” line 2 to the end of the sub-section and substitute therefore the words “be signed by the President”.

This is only preparatory to an amendment which occurs later on. The sub-section says:—

“Every Bill passed or deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law.”

Then, a later clause says:—

“The President shall promulgate every law made by the Oireachtas.” Instead of the words “shall require the signature of the President”, I want to substitute the words “shall be signed by the President”. Later on, there is an amendment to the effect that if the President fails or neglects to sign a Bill when the Constitution says that he should sign it, then, within a certain period, the Chairman of Dáil Eireann shall sign, and the Bill becomes law.

The President: I see no reason at all for agreeing to that amendment. The promulgation of law ought to be a definite act by the President as the final or last part, so to speak, of the legislature, and I see no reason why that should be deleted.

Mr. McGilligan: I was speaking about sub-section (1) of Section 3, which says that every Bill passed or [1214] deemed to have been passed by both Houses of the Oireachtas shall require the signature of the President for its enactment into law.

The President: That is necessary. If the President is really to be at all effectively a part in the whole scheme, his signature is necessary.

Mr. McGilligan: That word “effectively” just marks the point I want to make. My view is that once the legislation passes, the signature ought to be compulsory.

The President: Well, the power of doing certain other things, which he has, depends on the fact that he has to append his signature, which, under the circumstances here, can be withheld under certain other things—for instance, the Supreme Court, and so on, which is essential to the whole scheme.

Mr. McGilligan: That means that the President, by refusing his signature, can prevent a law passing.

The President: Oh, no.

Mr. McGilligan: There is an amendment introduced. There never was a paragraph in the Constitution——

The President: Pardon me. If you look at Section 5, Article 14, page 24, you will find that there is a commission. The Article says:

“The Council of State may make such provision as to them may seem meet for the exercise and performance of the powers and functions of the President under this Constitution in any contingency in which the President or a commission appointed under this Article fails or is unable to exercise and perform the said powers and functions or any of them and which is not provided for by the foregoing provisions of this Article.”

Now, the foregoing provisions of the Article make certain provisions, and in any case, while these do not cover every contingency, there is the reserve power here and, under these circumstances, the Council of State would have placed upon it the duty of making the necessary arrangements. Accordingly, if the President were to refuse [1215] to sign a Bill, under conditions in which he was not at liberty to refuse according to the Constitution, the work would be done for him.

Mr. McGilligan: Does paragraph 5 enlarge what was in the first paragraph of Article 14?

The President: The Deputy means the paragraph starting off with: “In the event of the absence of the President”, and so on?

Mr. McGilligan: Yes. My point is that Article 14 deals with the appointment of a commission in certain eventualities, such as the absence of the President, his temporary or permanent incapacity, his death, his resignation, his removal from office, and so on. Does paragraph 5 enlarge that?

The President: I should say, yes— that there is a residuary power given there to deal with anything that might not have been dealt with at all.

Mr. McGilligan: Why is amendment No. 54 introduced?

The President: The idea of the new Article 14 and the purpose of writing it at that length was that I was not pleased with the form in which these three or four Articles were placed. They were long Articles, and the desire was to cut them up, in accordance with the general scheme, by having short sentences and short paragraph as far as possible. As well as that, there is the change that you have the provision that the commission shall consist of the following persons, namely, the Chief Justice, the Chairman of the Dáil, and the Chairman of Seanad Eireann, and so on. That is a matter of form, as well as these ones about the Deputy Chairman of Dáil Eireann or the Deputy Chairman of Seanad Eireann. Then you have a provision which says that, in any contingency which is not provided for by the foregoing provisions of the Article, the Council of State may, by a majority of its members, make provision for the exercise and performance of the powers and functions of the President [1216] under the Constitution. Is that what the Deputy suggests is new?

Mr. McGilligan: No, it is not.

The President: Well, I see nothing here. I do not understand the Deputy's point.

Mr. McGilligan: I think that Section 4 of the new Article is very like Section 5 of the old.

The President: So it is.

Mr. McGilligan: And that it is equally ineffective.

The President: Well, we are willing to have that point shown.

Mr. MacDermot: Section 1 of the new Article 14 contains the phrase: “failure to exercise and perform the powers and functions of his office,” which is only reached in Section 5 of the former Article.

The President: Yes. Section 1 of the proposed new Article says that in the event of his absence, and so on, or his failure to exercise and perform the powers and functions of his office, the powers and functions shall be exercised and performed by the commission.

Professor O'Sullivan: What effective measures can they take?

The President: They can sign a Bill, for instance, in a case where the President refuses to sign it.

Professor O'Sullivan: Does the President mean that they can forge his signature?

The President: No; they can perform for him the functions that he has failed to perform.

Mr. McGilligan: Is it the Government that decides when he has failed?

The President: The Government in that case, I take it, would appeal to the Council of State.

Mr. McGilligan: I see. And the Council of State would decide when he had failed.

[1217] Dr. Rowlette: The one point that I wish to make is that it does not seem to me that there is any duty imposed upon him to sign a Bill. The clause says that for a Bill to become law, his signature shall be attached to the Bill, but it does not appear to enforce it on him as a duty to sign the Bill.

The President: It says that he shall exercise and perform the functions conferred on him by this Constitution.

Mr. McGilligan: Where is that?

The President: I think it is at the start.

Dr. Rowlette: When a Bill has passed both Houses of the Oireachtas it still requires his signature before it becomes law, and, as far as I can see, nobody in the Constitution is to put a duty on him to affix his signature. It appears to be left within his own discretion.

The President: The first section of Article 12 says:

“There shall be a President, hereinafter called the President, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law.”

The word “shall” there, I take it, is mandatory.

Mr. McGilligan: That is not an interpretation?

The President: That is the section.

Mr. McGilligan: Is that what the President is relying on as putting coercion on him to sign laws? Is that the clause?

Dr. Rowlette: What I am suggesting to the President is that Article 12 (1) does not include the signing of laws, and nowhere else in the Constitution is it said that it is his duty to sign a law, unless he thinks fit to do so.

The President: We shall see. First of all, I would be inclined to say that “shall” there is mandatory. Then in Article 25 (2), on page 50, we have the following:—

[1218] “Save as otherwise provided by this Constitution, every Bill so presented to the President for his signature and for promulgation by him as a law shall be signed by the President not earlier than five and not later than seven days after the date on which the Bill shall have been presented to him.”

Dr. Rowlette: That might cover the point, but would it not be clearer if he adopted the amendment suggested by Deputy McGilligan in this clause and inserted the words “shall be signed by the President,” instead of “shall require his signature”?

Professor O'Sullivan: Does the President say that the later clause which he has read out is mandatory?

The President: Yes—“shall be signed by the President not earlier than five and not later than seven days after the date on which the Bill shall have been presented to him.”

Professor O'Sullivan: Might I suggest that that is merely determining the question of time?

The President: It says that it shall be signed within two limits of time. Surely that is mandatory?

Mr. McGilligan: Then we may take it from the President that there are two Articles which are meant to coerce him. One is the general clause in Article 12 and the other is Article 25, page 50. That is the foundation of whatever there is in the Constitution in the way of coercing the President into doing his duty in regard to legislation?

The President: Yes.

Mr. McGilligan: Then under amendment No. 54, which has been introduced, if the President fails to do this, which is his duty, I understood him to say that there will be a reference to the Council of State to find out whether he had failed. Is that so?

The President: They have power in any contingency to do this act.

Mr. McGilligan: It is not a contingency that is envisaged in amendment [1219] No. 54. Amendment No.54 introduces a new Article 14, and says that “in the event of ... failure to exercise and perform the powers and functions of his office or any of them”, then the commission is to carry out the duty. Do I gather from the President that the intention is to get the nature of the failure established to the satisfaction of the Council of State and that the commission shall then perform his duties? Is that right?

The President: We have it stated in the amendment that “in the event of the absence of the President. . . . or failure to exercise and perform the powers and functions of his office, or any of them, or at any time at which the office of President may be vacant, the powers and functions of the President under this Constitution shall be exercised and performed by a commission constituted as provided in Section 2 of this Article.” There is a commission to be constituted in a certain way.

Mr. McGilligan: I am only on the single point. In the first line of amendment No. 54 there is a question of the temporary or permanent incapacity of the President. That has to be established to the satisfaction of a majority of the members of the Council of State. We then go on— “failure to exercise and perform the powers and functions of his office”. Then the commission comes into play. Failure to exercise the powers established to whose satisfaction?

Professor O'Sullivan: Who determines the failure?

Mr. McGilligan: The President said the Council of State. Where is the Council of State?

The President: The Council of State is not mentioned here. The form originally was, as well as I remember, that there were residuary powers left to the Council of State as a whole, to deal with any situation which was not covered by any explicit provision made in the Constitution. That was an omnibus power. They were given power to deal with any situation. One of these was to deal with the case [1220] where the President failed to carry out his functions.

Mr. McGilligan: What is the intention? Failure established to whose satisfaction?

The President: It would be proceeded with in this way. The Government would complain that the President had not performed his functions or at least would have to appeal to the body which was to act in the contingency. The body to act in this general contingency would be the Council of State. They would clearly, if they had to act, have to be satisfied that there was failure, just as we had it to-night on another matter that a certain court will have to decide whether it had jurisdiction. Here the Council of State would have to be satisfied that the President had failed to perform his functions and then the commission, according to this, would act.

Mr. McGilligan: We should ask somebody at the chapel gate to explain this.

The President: There have been some changes made at certain points. The original position has been changed somewhat. Formerly, in the original draft, there was a position where the Council of State was to appoint the commission. We have gradually arrived at the position now when it is considered better to have a permanent commission. The commission comes in there in the first instance and it would be their duty to act. In case they did not, the Council of State came in as a final reserve to deal with the situation.

Mr. McGilligan: I cannot see in the old Article 14 where there was to be any commission appointed by the Council of State.

The President: There have been more drafts than this.

Mr. McGilligan: Oh, secret documents, not the document before us?

The President: This did not come to this particular stage straight off.

Mr. McGilligan: In the document before us there was no provision for a [1221] commission being appointed by the Council of State.

The President: No.

Question—“That the words proposed to be deleted, stand”—put and declared carried.

Amendment No. 39 not moved.

An Leas-Cheann Comhairle: I take it that amendments Nos. 40 and 41 go together?

Mr. McGilligan: Pretty nearly, I think. I move these two amendments:—

40. To delete Section 4.

41. To delete Section 5.

These two amendments explain themselves. This Constitution wants to vest in the President supreme command of the Defence Forces. If that merely meant that the President became, as kings do elsewhere, an honorary colonel of various regiments and that we should allow him to spend part of his salary in providing himself with various uniforms or decorating himself in any way that might tickle his vanity, provided there was no extra emolument given to recoup him for the extravagance which he had indulged in in that way, it would do no harm, but when we come to the next section, which states that the exercise of the supreme command shall be regulated by law and that all commissioned officers of the Defence Forces shall hold their commissions from the President, then we are definitely getting into dangerous ground. I see no reason whatever for having the officers hold their commissions from the President. I know that there are Constitutions which have a phrase in them corresponding to this paragraph 4. I know that in the majority of Constitutions where that phrase occurs the supreme command is vested in the President, but it may not be exercised by him in time of war, or any approach to war. It is quite clearly indicated that it is only a ceremonial business. I suggest that it is exceptional in Constitutions to have a clause corresponding to 5 (2), that all the commissioned officers of the Defence Forces are to hold their commissions [1222] from the President. If we had some prohibition in this that nobody who had ever been, say, a member of the Executive Council, nobody who had ever been head of the Executive Council, if we had even the prohibition that people who held certain officers were not eligible for and could not be elected to the Presidency of the country, there might be something to be said for this. But in that condition in which we must contemplate that the President, hereafter, is going to be somebody who was closely connected with a political party, and certainly will have been a member of the Executive Council, possibly will have been head of the Executive Council, and where politics are all around the President, and particularly in the new condition where he can present himself for election at least once more, and will, therefore, have the temptation to play politics during his first term of office, I see no reason whatever for giving such a man—who will be a politician, getting into power through the persuasion of a political party— complete control of the Forces, when he will not be subject to the immediate authority or the close impact of the Dáil upon him. I see no reason for giving that man this right that all the commissioned officers of the Forces should hold their commissions from him.

The President: In regard to the position here that the supreme command of the Defence Forces should be vested in the President, it is quite clear that that is only nominal. It could only be nominal. Any powers that he might exercise there will have to be exercised under the Constitution, and, therefore, any powers that he might exercise in virtue of that vesting will have to be exercised on the direct advice of the Government. Is not that so? Any power given to the President can only be exercised on the advice of the Government, which is responsible to the Parliament. Next, there is the question that the exercise of the command should be regulated by law. This envisages a situation in which the Army in this country, as in every other democratic country, would be immediately controlled or under the ultimate [1223] effective control of Parliament. The Government is responsible to Parliament and Parliament makes the law. Is it not obvious that Parliament would regulate the command of that so as to make it effectively under the control of the Executive Council? Therefore, you cannot imagine that a law would be passed by Parliament which would give the ultimate control of the Forces out of its own power and hand it over to the President. In fact, they could not do it under this.

Mr. McGilligan: Why could they not do it?

The President: Suppose they do; we are assuming that we are going to have such an extraordinary situation that Parliament, which is so jealous of its powers, is going simply to hand them away, but in any case the handing of them away would not be constitutional, because we have a law that any powers or functions given to him by law will be exercised on the advice of the Government. If the Parliament is going to give away its powers, then the Government can give away its powers, and the Government does not mean anything. There you have the position that the people have nothing to depend upon. If you envisage such a situation, then of course Parliamentary and representative institutions are a mere farce. To get any dangerous position, such as would seem to be indicated by the speeches from the opposite side, you would have to get this state of affairs: that Parliament was going completely to hand over its powers, and that the Government was going to be such—although it would have to be nominally giving advice—that it would be just the advice that the President wanted. As I say, if you are going to envisage that state of affairs there is no use in writing any Constitution. We are assuming here that the representatives of the people will continue to be as jealous of their ultimate control of the Army as representative institutions have generally shown themselves to be. I say that if you assume anything else, then you will get a situation in which the President, whether he has active control or not, is able to dominate the [1224] situation to such an extent that his will becomes law. If that situation is envisaged, one cannot frame a Constitution to meet it.

Professor O'Sullivan: There is one point which I want to make, and that is that the President does not seem to recognise the difference between the Constitution and ordinary law. The Constitution is precisely meant to guard against dangerous cases. If the President would allow me to finish a sentence and would attend to the ordinary rules of debate—I think I am quoting him fairly accurately—we might get on. The Constitution is precisely meant to guard against dangers. Every Constitution does envisage a case where there would be an attempt to interfere with the people's liberties. That is the reason why you have certain guards against Parliament, and also against people in the position of President. Therefore, that argument does not hold. I can well envisage a case in which a discredited Party as a Government might use its power to make the command exercised by the President a real command, and not merely a nominal command.

If, as I think ought to be the case, the President were merely a functionary, merely a nominal person at the head of the State, or for most purposes at the head of the State—not strictly head of the State, I admit—if he were merely a ceremonial representative of the State, I could understand the line taken up by the President, but our contention all along has been that he is something very different. The possibility is there under this Article. You will notice it is put in under the powers to be conferred on the President. It is there put in dealing with the powers of the President. I think that is dangerous. The President is living in the 20th century—I often wonder if he does live in the 20th century—and he calmly tells us that the representatives of the people will never give control of the Army to the President. Does he know that such a place as Europe exists? Will the President get it into his head that there are places other than Great Britain in the world? He finds it difficult to do that. There are places on the Continent in which the [1225] representatives of the people have given that power over to the President. He tells us calmly that generally the representatives of the people have shown themselves to be particularly jealous to preserve their rights in this respect, when they have done exactly the opposite.

The President: I do not pretend to know conditions in Europe as the Deputy knows them. The little I do know seems to suggest that where that has happened the people have consented to do it.

Mr. McGilligan: Do you say that now as historical reading of recent events in Europe?

The President: It could not have happened if the people did not consent. It certainly happened in one case. In the first instance the people will have to elect their representatives, and they will have to choose people who will safeguard their interests. If the people are prepared to change the form of government and to allow another system to be set up, then I say they cannot be protected. If Parliament is going to do these things, and if it can be done without the will of the people, the Constitution is not going to bring them very far. The supreme control of the Army has to be vested somewhere. It is vested in the Executive Council at the moment. Under this Constitution, while the vesting will be in the President, as a non-political personage, the actual point is this, that the President in his office is supposed to act not as a Party person. We have for a number of years a Ceann Comhairle selected from one particular Party.

Mr. McGilligan: I object to this comparison because it is going to lead to odious remarks.

The President: It is the best we could get.

Mr. McGilligan: Again I want to object to that phrase being used without entering into arguments.

The President: Certainly I do not want to get the Deputy on to anything of that sort. I think it would be [1226] better for the dignity of the House that it should not be done.

Mr. McGilligan: Do not let us drag that in then.

The President: With regard to this matter, I say that you cannot get a person absolutely and completely without political views. When I say political views, I mean views on government and the conduct of affairs. If he is worthy at all he must have opinions from day to day. They may not be the opinions held by a Party, but he will have views. He enters office and takes an oath to carry out his functions in a certain way, but as far as it is humanly possible to remove him, he is removed from Party politics. The question is: Should he have supreme control, or should it be vested in the Executive Council? I say this is better, as it indicates the continuity of the State. It is better that it should be vested in him as being less political than the Executive Council of the day. But control is, in fact, in the Executive Council or Government of the day. It is their advice has to be taken in regard to the exercise of these functions because it is solely a Government Constitution and as far as the Constitution can make it right there it is. If the law is passed it will be passed by Parliament. Supposing the law regulates that it is to be done in a particular way, and that he cannot be given the power of acting except on the advice of the Government——

Mr. McGilligan: That is not the Constitution.

The President: Effective control of the Army remains with Parliament and the immediate control remains with the Government responsible.

Mr. McGilligan: That is not in the Constitution yet.

Mr. MacDermot: I should like commissioned officers of the Defence Forces to hold their commissions from the King, but failing that, it seems to me to be far better and more appropriate that they should hold them from the head of the State than from a member of the Government of the day. If we [1227] are going to object to an arrangement of an exceptional character, I feel inclined to ask in how many countries is it the custom for commissioned officers to hold commissions from the Government of the day, or from one of the Ministers composing the Government of the day.

Mr. McGilligan: It is mainly the situation.

Mr. MacDermot: Is it? I am bound to say that that statement fills me with surprise.

Mr. McGilligan: I am talking about the supreme command.

Mr. MacDermot: That is what I am talking about. I suggest that in every kingdom they are held from the King.

Professor O'Sullivan: There are not so many kings.

Mr. MacDermot: There are kings in the Scandinavian countries, in Belgium and in Great Britain. Further, I know that in certain republics they are held from the President. I think that is the case in France. It is certainly the case in Finland.

Mr. McGilligan: I verified the point mentioned last night and you were wrong.

Mr. MacDermot: About what?

Mr. McGilligan: About the President of Finland. The Act of 1934 says that all Government Acts must be signed by the President. That is the section dealing with Government Acts.

Mr. MacDermot: I make this statement that the President of Finland has personal discretion in any act he has to perform in connection with the Army, without any counter signature by the Government or any member of the Government.

Mr. McGilligan: I think it counts as an executive act.

Mr. MacDermot: I make the statement with confidence that the President of Finland acts in connection with the Army on his own discretion. Furthermore, although it does not bear [1228] on the question of the Army, the President of Finland has a veto on legislation and can prevent a law from being put into force until the people have been consulted on it.

Mr. V. Rice: On a point of order, are we discussing the amendment before the House now or one that was before it last night?

Mr. MacDermot: I am out of order; I admit that.

Mr. McGilligan: I apologise for bringing the Deputy out of order.

Mr. MacDermot: The Deputy introduced the subject. To return to the Army, it seems more appropriate that the President should hold supreme command and that commissioned officers should hold commissions from the President than that authority should be in the Minister for Defence or the Executive Council as a whole. I do not understand the object of Section 5 (1) which says: “The exercise of the supreme command of the Defence Forces shall be regulated by law.” What is the point in that? Is it meant to indicate that some supplementary legislation has to be passed in connection with it?

The President: We will have an Army Act.

Mr. MacDermot: In that case the suggestion I was going to make, as regards substitution for this, is as to whether it would not be as well to get in somewhere the notion that the exercise of the supreme command of the Defence Forces by the President should be subject to the control of the Oireachtas. I know that that is what is intended.

The President: It is.

Mr. MacDermot: Would it not be as well to state it definitely in connection with the Defence Forces?

The President: The only point is that if you put it in, or if you leave it out, a point will be made about it. I am afraid it has enabled a great deal of propaganda to be made that would not be possible at all if we had put into every section “on the advice of the [1229] Government”. We have put it into one section on page 20. I am afraid I will have to see that this is brought prominently before the attention of the public so that the propaganda going on will not be made effective.

On page 20, Article 13, Section 9 says: “The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided....” So that in any other place where you see the President does anything and you have no other provision after it, or no other qualification, such as, “at his own discretion,” or “after consultation with the Council of State” or “on the nomination of the Dáil,” or something of that sort, but simply that the President does this or that, then you add to it “on the advice of the Government.” It was simply to save a certain amount of verbiage. The basis for a great deal of the pretence that has been possible here, that the President will be a dictator, is because we saved verbiage and put in one clause, instead of 40 or 50 times in the course of the Constitution, that the President shall do it on the advice of the Government. It is clearly on the advice of the Government that he will exercise any functions in this Constitution. To remove all possibility of doubt, we have put down an amendment making it quite clear that, if he is given any functions by law, those functions, no matter of what character they are, even though they are of a character that, if they were in this Constitution, he could do them of his own discretion or after consultation with the Council of State, shall be exercised only on the advice of the Government. It is provided that if he gets any power whatever by law he shall exercise that power only on the advice of the Government.

Mr. McGilligan: That is an interesting afterthought, but it is an afterthought. The situation in the Constitution, as presented to us was that, in all matters generally arising under the Constitution and given to the President, he had to act on the advice of the Government. We will see afterwards [1230] what that means. But there was an omission, whether deliberate or not, that matters given to him by law were not caught by that phrase. Now, as an afterthought, by amendment, it is suggested to us that this is going to be amended. What does that mean? The President is going to act on the advice of the Government—sometimes on the advice of a member of the Government, the Taoiseach, sometimes on the advice of the Government.

But supposing he does not act on the advice of the Government, what happens? There is again an amendment brought in to meet a situation that was debated on the Second Reading, that there was no way of coercing the President to act as the Government intended him to act or wished him to act, where the Constitution intended that the Government should have power. Now, we get this Article 14 re-written and introduced in amendment No. 54. We were told this evening, when the President was asked to analyse that, that he did not know to whose satisfaction failure to exercise his powers had to be established. In the end he throws out that it is to be established to the satisfaction of the Council of State; and the Council of State is a body of people who can be appointed or dismissed by the President until he gets a group who will agree with his viewpoint. That what the advice of the Government comes to when analysed down through all the circuits in this Constitution. The President is bound to act on the advice of the Government and, in the end, a decision as to whether he comported himself in accordance with the Constitution, according to the President's statement, is to be determined by the Council of State. That is no constitutional safeguard for anybody.

On the special matter of the exercise of the supreme command of the Army, Deputy MacDermot referred me to France. The French Constitution says that the President shall have a variety of powers, one being: “He shall dispose of the armed forces”; and the last paragraph of the Article is: “Every act of the President of the Republic must be countersigned by a Minister.”

[1231] Mr. MacDermot: We have an equal safeguard.

Mr. McGilligan: We have not.

The President: You have.

Mr. McGilligan: By an amendment which I have put down I am trying to put in the countersignature of a Minister. Will it be accepted?

The President: No.

Mr. McGilligan: I am trying to write into it what I find in the vast majority of the Constitutions in the world.

The President: It is not necessary.

Mr. McGilligan: Deputy MacDermot also referred me to Norway and Sweden. In Sweden, first of all, there is an Article which states that the King shall be the commander-in-chief. Then there is an Article which states:

“Matters of military command, that is to say, decisions in which the King personally acts in his capacity as commander-in-chief of the land and naval forces, shall be decided by the King, when he is personally exercising the executive power, in the presence of the head of the military Department within whose province the matter falls. The head of that Department is bound, under his responsibility, to express his opinion upon the measures adopted by the King, at the time when such measures are under consideration; should he disapprove of the decision of the King he shall enter his objections and advice upon a minute which the King shall authenticate by his Royal signature.”

Later it says:

“The matters of government which are to be considered matters of military command shall be determined by law enacted by the King and the Riksdag jointly.”

Mr. MacDermot: What I said about the King remains true.

Mr. McGilligan: The Deputy's argument was that commissions were held from the King in Norway and Sweden and from the President in France. I do not care whether they are held [1232] from the King or President as long as they are completely and entirely under the control of a Minister, as long as there is somebody here who is responsible to Dáil Eireann.

Mr. MacDermot: I maintain that the President is under the control of the Government.

Mr. McGilligan: I maintain he is not. He is only under the control of the Council of State, a body of “yes-men,” a group of his own. Consider putting up as a constitutional safeguard a body which is to be appointed in this way. There are certain people ex officio members, and then, “such other persons, if any, as may be appointed by the President under this Article to be members of the Council of State.” The Article then goes on: “The President may at any time and from time to time by warrant under his hand and seal appoint such other persons as in his absolute discretion he may think fit to be members of the Council of State, but not more than seven persons so appointed shall be members of the Council of State at the same time.” He can get that body shifting around from hour to hour. It is a rubbishy safeguard, if that is the body which is to determine whether the President is acting on the advice of the Government or not. If we are going to have something embodied in the Constitution, it ought to be a little bit more respectable than a group that can be changed at any moment that the President dislikes them. The alternative offered is this. This seeks to put in, as an Article of the Constitution requiring a Constitution Amendment Act, that all officers shall hold their commissions from the President. Why should it be so? Why should not the Dáil dispose of the armed forces of the community? Why should not the Minister for Defence, subject to Parliamentary question from day to day——

The President: That is what will be done. Is he not subject to advice?

Mr. McGilligan: What is subject to advice—the control that the President has? I will deal later with that argument. It is made a constitutional provision, [1233] unchangeable except in a very rigid way, that all the commissions must be held from the President. It is a bad, dangerous, insecure position in which to have the President and the Army without a single link. If there is nothing else in it, I object to that. Let us look at the rest of it. The supreme command of the forces is to be vested in the President. The President says that there is a great safeguard, that it is to be regulated by law, and gives us his usual tirade, “Do we think that any representative Government or Parliament is going to surrender its authority?” I do not think that Parliament will surrender its authority.

What I think of is this: a Government on the eve of going out of office, knowing it is going to be beaten, with a President elected a year before, in for six years, and that Government, by a majority in a dying Parliament, decides that it will pass a law which will hand over certain powers with regard to the military command to the President. What happens afterwards? The President is to take the advice of the new Government. But it is the Council of State which will decide whether he is acting on the advice of the Government or not. That is no safeguard. The new Government can challenge the new law. Can the President [1234] determine whether it is a constitutional amendment? He can. Then, it goes off to the people and there is delay.

The President is not so blind to what is happening in Europe. He told Deputy O'Sullivan that on the Continent he did not know of any place where democracy had been trampled upon, and where representative institutions had been trampled upon, through any such abuse as we raised here. Surely the whole trouble on the Continent, in any country where democratic institutions have been trampled upon, is that people had to pretend that they got the power from the Constitution; but they did it by coercing the people at voting time.

The President: What safeguard can you have in any Constitution against that?

Mr. McGilligan: It was done in order to keep it within the terms of the Constitution and in order to have judicial authority behind it. That can be done here, too. I move to report progress.

Progress reported; Committee to sit again on Friday.

The Dáil adjourned at 10.30 p.m. until Friday, 28th May, at 10.30 a.m.