Council of State (Ireland)


Council of State (Ireland)
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The Council of State (Irish: an Chomhairle Stáit[1]) is a body established by the Constitution of Ireland to advise the President of Ireland in the exercise of many of his or her discretionary, reserve powers.[2] The Council of State also has authority to provide for the temporary exercise of the duties of the president in the event that these cannot be exercised by either the president or the Presidential Commission[3] (an eventuality that is very unlikely to occur).

Gemma Hussey, who was a member of the Council of State in 1989–90, described it as "largely a symbolic body".[4] The Council of State has been likened to a privy council, [5][6] although Jim Duffy calls this "more apparent than real" as it has no legislative or judicial functions.[7]

Contents

Members

The Council of State consists of a number of government officials, who sit ex-officio, as well as certain former office holders and up to seven individuals of the president's own choosing. The ex officio members comprise the attorney general as well as two individuals from each of three branches of government: legislature, executive and judiciary.[8]

Unlike most of the president's other duties, which must be conducted in accordance with the advice of the cabinet, the seven presidential appointees to the Council of State are chosen at the president's absolute discretion.[9] These appointees retain their positions until the president's successor takes office.[10] Every member of the Council of State must subscribe to a stipulated declaration of office before participating in its meetings.[11]

Class Office Current members
Ex-officio: executive Taoiseach (Prime Minister) Enda Kenny
Ex-officio: executive Tánaiste (Deputy Prime Minister) Eamon Gilmore
Ex-officio: legislature Ceann Comhairle (Speaker of the Dáil) Seán Barrett
Ex-officio: legislature Cathaoirleach (Speaker of the Senate) Paddy Burke
Ex-officio: judiciary Chief Justice of the Supreme Court Susan Denham
Ex-officio: judiciary President of the High Court Nicholas Kearns
Ex-officio Attorney General Máire Whelan
Former officeholders President Mary Robinson, Mary McAleese
Former officeholders Taoiseach Liam Cosgrave, Albert Reynolds, John Bruton, Bertie Ahern, Brian Cowen
Former office holders Chief Justice John L. Murray, Thomas Finlay, Ronan Keane
President's nominees (List of former nominees) (Michael D. Higgins' nominees are pending since his 2011 inauguration)

The Constitution explicitly states that members appointed by the President may resign,[12] or be dismissed by the President.[13] Former office holders are members if "able and willing to act as a member",[14] which implies an ability to resign; but there is no provision for dismissing them. When the McCracken Tribunal found in 1997 that former Taoiseach Charles Haughey had had corrupt dealings during his political career, there were calls for him to formally resign from the Council of State.[15][16] He did not do so, although he sent his regrets to subsequent meetings of the Council until his death.[15][17]

Members of the Council of State may be excused from jury duty.[18]

Role

Before exercising any reserve power but one, the President is required to seek the advice of the Council of State, although not required to follow its advice. The one exception, where the President has "absolute discretion",[19] is in deciding to refuse a dissolution to a Taoiseach who has lost the confidence of the Dáil. The remaining discretionary powers, which do require prior consultation with the Council of State, are as follows (for a detailed description of the president's reserve powers see: President of Ireland#Discretionary powers):

The draft of the Constitution gave more powers to the Council of State. Article 13 allows additional powers to be given to the President acting on the advice of the Government; originally, it was the advice of the Council of State that was to be required.[7] Article 14 provides for a Presidential Commission as the collective vice-presidency of the state when the President is absent; originally the Council of State was to fill this function.[7] Nevertheless, under Article 14.4 of the constitution the Council of State, acting by a majority of its members, has authority to "make such provision as to them may seem meet" for the exercise of the duties of the president in any contingency the constitution does not foresee.[3] This provision has never been invoked.

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

Meetings

Working meetings called by the President for consultation under the terms of the Constitution are rare, though less so since the election of Mary Robinson in 1990. Four meetings have related to an address the Oireachtas, which requires the approval of the Government as well as the consultation of the Council of State. All other meetings have been to advise the President about whether to refer a bill to the Supreme Court.[27]

Meetings are held in Áras an Uachtaráin.[15] Members arrive 15 minutes before the meeting starts, and are served light refreshments in the Council of State Room.[15] At the first meeting of the Council in Mary McAleese's first term, there was a photocall in the State Reception Rooms.[15] The Council's deliberations are held in camera,[15] although The Irish Times obtained details of a 1984 meeting from an unnamed attendee.[28] Members are seated in order of precedence in the Presidents' Room around a 1927 dining table purchased by President de Valera in 1961.[15] The secretary to the President serves as clerk to the Council.[29] The Council does not offer collective advice; the President asks each member in turn to comment, and further discussion may involve several members.[7] Jim Duffy in 1991 criticised the lack of supporting resources for members of the Council; at meetings they were provided only with a copy of the Constitution.[7]

Apart from the Council of State's official meetings, its members are invited to important state functions, such as state funerals, the National Day of Commemoration, and the inauguration of the next President. The first President, Douglas Hyde, dined monthly with the members of his Council of State.[30] The seven new Presidential nominees of Mary McAleese's second term were introduced at a luncheon in the Áras the month after their appointment.[31] Campaigning in the 1990 presidential election, Mary Robinson promised to have meetings of the Council regularly rather than on "an emergency basis".[32]

Addresses to the Oireachtas

Date of meeting[27] President Topic of Address Date of Address (link to text) Notes
20 December 1968[33] Éamon de Valera 50th anniversary of the First Dáil 21 January 1969 Brendan Corish was the only absentee from the Council of State meeting.[34]
29 June 1992 Mary Robinson "the Irish Identity in Europe"[35] 8 July 1992
24 January 1995 Mary Robinson "Cherishing the Irish Diaspora" 2 February 1995
28 October 1999 Mary MacAleese Marking the millennium[36] 16 December 1999 Charles Haughey, Albert Reynolds, and Mary Robinson were absent.[15]

Referring of bills

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

Date of meeting[27] Bill (section) President Outcome Notes
8 January 1940 Offences against the State (Amendment) Bill, 1940 Hyde, DouglasDouglas Hyde Referred and upheld[37][38] See Offences against the State Acts 1939–1998. W. T. Cosgrave was the only absent member of the Council.[39] The Dublin North West branch of the Labour Party passed a resolution urging William Norton to withdraw from the Council "which exists for the purpose of endorsing Fianna Fáil restrictions on liberty".[40]
25 February 1943 School Attendance Bill, 1942 Hyde, DouglasDouglas Hyde Referred and struck down[41][42]
13 August 1947 Health Bill, 1947 Okelly, Sean TSeán T. O'Kelly Signed without referral[43] Absentees were George Gavan Duffy, Douglas Hyde, Timothy Sullivan, W. T. Cosgrave, and Richard Mulcahy.[44]
14 June 1961 Electoral (Amendment) Bill, 1961 Devalera, EamonÉamon de Valera Referred and upheld[45][46]
6 March 1967 Income Tax Bill, 1966 Devalera, EamonÉamon de Valera Signed without referral[47] All members attended.[48] On 7 March, before the President announced a decision, the Income Tax (Amendment) Bill, 1967 was introduced and passed by the Oireachtas.[49] This pre-emptively cancelled the contentious sections of the original Bill.[49][50] Next day, the President signed both bills into law.[50][51]
10 March 1976 Criminal Law (Jurisdiction) Bill, 1975 Odalaigh, CearbhallCearbhall Ó Dálaigh Referred and upheld[52][53] James Dooge, Cathaoirleach of the Seanad, was absent.[54]
23 September 1976 (a) Emergency Powers Bill, 1976 Odalaigh, CearbhallCearbhall Ó Dálaigh Referred and upheld[55][56] The meeting, which discussed two bills, lasted 4 hours.[57] Maurice E. Dockrell was the only absentee.[57] President Ó Dálaigh and Attorney General Declan Costello debated points of law in great detail.[7] Minister Paddy Donegan described the President's decision to refer the bill as a "thundering disgrace", precipitating Ó Dálaigh's resignation.
23 September 1976 (b) Criminal Law Bill, 1976 Odalaigh, CearbhallCearbhall Ó Dálaigh Signed without referral[58] Same meeting as preceding
22 December 1981 Housing (Private Rented Dwellings Bill), 1981 Hillery, PatrickPatrick Hillery Referred and struck down[59][60]
20 December 1983 Electoral (Amendment) Bill, 1983 Hillery, PatrickPatrick Hillery Referred and struck down[61][62] Absentees were Siobhán McKenna, Seán McEntee, and James Dillon.[63] The bill would have given British citizens the right to vote in all elections in the Republic of Ireland. The Ninth Amendment of the Constitution in 1984 removed the obstacle with regard to Dáil elections but not Presidential elections or referenda (ordinary or constitutional).[64] The Electoral (Amendment) Act, 1985 extended the franchise for Dáil elections.[65]
5 December 1984 Criminal Justice Bill, 1983 Hillery, PatrickPatrick Hillery Signed without referral[66] Siobhán McKenna and Máirín Bean Uí Dhálaigh were absent.[28]
22 June 1988 Adoption (No. 2) Bill, 1987 Hillery, PatrickPatrick Hillery Referred and upheld[67][68] Absentees were Tom O'Higgins and Jack Lynch.[69]
30 October 1991 Fisheries (Amendment) Bill, 1990 Robinson, MaryMary Robinson Signed without referral[70]
1 December 1993 Matrimonial Home Bill, 1993 Robinson, MaryMary Robinson Referred and struck down[71][72]
1 March 1994 Criminal Justice (Public Order) Bill, 1993 Robinson, MaryMary Robinson Signed without referral[73]
16 March 1995 Regulation of Information services outside the State for Termination of Pregnancies Bill, 1995 Robinson, MaryMary Robinson Referred and upheld[74][75] The act sprang from the Fourteenth Amendment of the Constitution of Ireland in 1992. See also abortion in the Republic of Ireland.
1 April 1997 Employment Equality Bill, 1996 Robinson, MaryMary Robinson Referred and struck down[76][77] 15 of 22 members attended, including the Taoiseach.[78]
6 May 1997 Equal Status Bill, 1997 Robinson, MaryMary Robinson Referred and struck down[79][80] Charles Haughey was absent.[81]
30 June 2000 (a) Planning and Development Bill 1999 McAleese, MaryMary McAleese Referred Part V; upheld[82][83]
30 June 2000 (b) Illegal Immigrants (Trafficking) Bill 1999 McAleese, MaryMary McAleese Referred §§ 5 and 10; upheld[82][84] Same meeting as preceding
8 April 2002 Section 24 of the Housing (Miscellaneous Provisions) (No. 2) Bill, 2001 McAleese, MaryMary McAleese Signed without referral[85]
21 December 2004 Health (Amendment) (No. 2) Bill 2004 McAleese, MaryMary McAleese Referred and struck down[86][87] Charles Haughey was the only absentee.[17]
9 May 2007 Criminal Justice Bill 2007 McAleese, MaryMary McAleese Signed without referral[88]
22 July 2009 (a) Defamation Bill 2006 McAleese, MaryMary McAleese Signed without referral[89] 19 of 22 members of the Council were present; the meeting lasted over 3 hours.[90] See also blasphemy law in Ireland.
22 July 2009 (b) Criminal Justice (Amendment) Bill 2009 McAleese, MaryMary McAleese Signed without referral[89] Same meeting as preceding
21 December 2010 Credit Institutions (Stabilisation) Bill 2010 McAleese, MaryMary McAleese Signed without referral[91] See 2008–2010 Irish banking crisis

See also

References

  1. ^ "the Council of State". focal.ie. http://focal.ie/Search.aspx?term=the%20Council%20of%20State&lang=1. Retrieved 21 November 2011. 
  2. ^ Constitution of Ireland, Articles 31–2
  3. ^ a b Constitution of Ireland, Article 14.4
  4. ^ Hussey, Gemma (1995). Ireland today. Penguin. p. 12. ISBN 9780140157611. http://books.google.com/books?id=NCGdaWqDGXwC. Retrieved 12 November 2010. 
  5. ^ "First Council of State meets to-day". The Irish Times: p. 5. 8 January 1940. "The new body may be said to be analogous to the old-time Privy Council, with the important difference that it is purely advisory, and has, in fact, no definite powers." 
  6. ^ Keogh, Dermot; McCarthy, Andrew; McCarthy, Dr. Andrew (2007). The making of the Irish Constitution 1937: Bunreacht na hÉireann. p. 199. ISBN 9781856355612. http://books.google.com/books?id=bCCQAAAAMAAJ. Retrieved 11 November 2010. "The Privy Council in Ireland disappeared with the Viceroy and the rule of Dublin Castle; it comes back as the President's Council of State" 
  7. ^ a b c d e f Duffy, Jim (21 February 1991). "Council of State's function is still very confined". The Irish Times: p. 9. 
  8. ^ Constitution of Ireland, Article 31.2
  9. ^ Constitution of Ireland, Article 31.3
  10. ^ Constitution of Ireland, Article 31.5
  11. ^ Constitution of Ireland, Article 31.4
  12. ^ Constitution of Ireland, Article 31.6
  13. ^ Constitution of Ireland, Article 31.7
  14. ^ Constitution of Ireland, Article 31.2(ii)
  15. ^ a b c d e f g h McCarthy, Justine (30 October 1999). "Keeping her own Council". Irish Independent: p. 1. http://www.independent.ie/national-news/keeping-her-own-council-395440.html. Retrieved 12 November 2010. 
  16. ^ "Haughey's removal from Council of State urged". The Irish Times: p. 7. 15 October 1997. http://www.irishtimes.com/newspaper/archive/1997/1015/Pg007.html#Ar00705. Retrieved 13 November 2010. 
  17. ^ a b "Council advises McAleese on Health Bill". RTÉ.ie. 21 December 2004. http://www.rte.ie/news/2004/1221/health.html. Retrieved 12 November 2010. "the only absentee was the former Taoiseach, Charles Haughey" 
  18. ^ Juries Act, 1976; First Scheddule, Part II Irish Statute Book
  19. ^ Constitution of Ireland, Article 13.2.2°
  20. ^ Constitution of Ireland, Article 13.2.3°
  21. ^ Constitution of Ireland, Article 13.7.1°
  22. ^ Constitution of Ireland, Article 13.7.2°
  23. ^ Constitution of Ireland, Article 22.2.6°
  24. ^ Constitution of Ireland, Article 24.1
  25. ^ Constitution of Ireland, Article 26.1.1°
  26. ^ Constitution of Ireland, Article 27.4.1°
  27. ^ a b c "Meetings of the Council of State". Office of the President. http://www.president.ie/index.php?section=18&lang=eng. Retrieved 11 November 2010. 
  28. ^ a b "Council of State gives mixed reaction to Bill". The Irish Times: p. 7. 6 December 1984. 
  29. ^ Presidential Establishment Act, 1938 §6((5))
  30. ^ Dunleavy, Janet Egleson; Dunleavy, Gareth W. (1991). Douglas Hyde: a maker of modern Ireland. University of California Press. pp. 399–400. ISBN 9780520066847. http://books.google.com/books?id=24sMpeVwhXgC&pg=PA399. Retrieved 12 November 2010. 
  31. ^ "Engagements Week beginning 13th December 2004". Office of the President. http://www.president.ie/index.php?section=6&engagement=200451&lang=eng. "Wednesday, 15th December 2004 ... 12:30 p.m. Áras an Uachtaráin: President hosts lunch for newly-appointed members of the Council of State" 
  32. ^ Tynan, Maol Mhuire (27 September 1990). "Robinson wants Council of State to have new role in Presidency". The Irish Times: p. 2. 
  33. ^ 20th December 1968 - Address to Houses of the Oireachtas (Parliament) Office of the President
  34. ^ "Council of State meets". The Irish Times: p. 4. 21 December 1968. 
  35. ^ 29th June 1992 - Address to the Houses of the Oireachtas (Parliament) Office of the President
  36. ^ 28th October 1999 - Address to the Houses of the Oireachtas (Parliament) 28th October 1999 - Address to the Houses of the Oireachtas (Parliament) Office of the President
  37. ^ 8 January 1940 – Offences against the State (Amendment) Bill, 1940 Office of the President
  38. ^ In re Article 26 and the Offences Against the State (Amendment) Bill 1940 Supreme Court
  39. ^ "Offences Bill referred to Supreme Court". The Irish Times: p. 5. 9 January 1940. 
  40. ^ "The Council of State; A Dublin Labour resolution". The Irish Times: p. 13. 13 January 1940. 
  41. ^ 25 February 1943 – School Attendance Bill, 1942 Office of the President
  42. ^ In re Article 26 and the School Attendance Bill 1942 Supreme Court
  43. ^ 13 August 1947 – Health Bill, 1947 Office of the President
  44. ^ "Council of State Meets". The Irish Times: p. 1. 14 August 1947. 
  45. ^ 14 June 1961 – Electoral (Amendment) Bill, 1961 Office of the President
  46. ^ In re Article 26 and the Electoral (Amendment) Bill 1961 Supreme Court
  47. ^ 6 March 1967 – Income Tax Bill, 1966 Office of the President
  48. ^ "Council of State meets". The Irish Times: p. 1. 7 March 1967. 
  49. ^ a b Dáil debates Vol.227 col.113
  50. ^ a b Income Tax (Amendment) Act, 1967 Irish Statute Book
  51. ^ Income Tax Act, 1967 Irish Statute Book
  52. ^ 10 March 1976 – Criminal Law (Jurisdiction) Bill, 1975 Office of the President
  53. ^ In re Article 26 and the Criminal Law (Jurisdiction) Bill 1975 Supreme Court
  54. ^ "Criminal Law Bill for Supreme Court". The Irish Times: p. 1. 11 March 1976. 
  55. ^ 23 September 1976 – Emergency Powers Bill, 1976 Office of the President
  56. ^ In re Article 26 and the Emergency Powers Bill 1976 Supreme Court
  57. ^ a b "President consults Council of State for four hours". The Irish Times: p. 1. 24 September 1976. http://www.irishtimes.com/newspaper/archive/1976/0924/Pg001.html#Ar00100. Retrieved 13 November 2010. 
  58. ^ 23 September 1976 – Criminal Law Bill, 1976 Office of the President
  59. ^ 22 December 1981 – Housing (Private Rented Dwellings Bill), 1981 Office of the President
  60. ^ In re Article 26 and the Housing (Private Rented Dwellings) Bill 1981 Supreme Court
  61. ^ 20 December 1983 – Electoral (Amendment) Bill, 1983 Office of the President
  62. ^ In re Article 26 and the Electoral (Amendment) Bill 1983 Supreme Court
  63. ^ "Council of Stae considers voting Bill". The Irish Times: p. 6. 21 December 1983. 
  64. ^ Ninth Amendment of the Constitution Act, 1984 Irish Statute Book
  65. ^ Electoral (Amendment) Act, 1985 Irish Statute Book
  66. ^ 5 December 1984 – Criminal Justice Bill, 1983 Office of the President
  67. ^ 22 June 1988 – Adoption (No. 2) Bill, 1987 Office of the President
  68. ^ In re Article 26 and the Adoption (No.2) Bill 1987 Supreme Court
  69. ^ Brennock, Mark (22 June 1988). "Hillery consults Council of State on Adoption Bill". The Irish Times: p. 9. 
  70. ^ 30 October 1991 – Fisheries (Amendment) Bill, 1990 Office of the President
  71. ^ 1 December 1993 – Matrimonial Home Bill, 1993 Office of the President
  72. ^ In re Article 26 and Matrimonial Home Bill 1993 Supreme Court
  73. ^ 1 March 1994 – Criminal Justice Public Order Bill, 1993 Office of the President
  74. ^ 16 March 1995 – Regulation of Information services outside the State for Termination of Pregnancies Bill, 1995. Office of the President
  75. ^ In re Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995 Supreme Court
  76. ^ 1 April 1997 – Employment Equality Bill, 1996 Office of the President
  77. ^ In re Article 26 and the Employment Equality Bill 1996 Supreme Court
  78. ^ "15 attend meeting on Bill". Irish Times. 4 Apr 1997. http://www.irishtimes.com/newspaper/ireland/1997/0402/97040200052.html. Retrieved 12 November 2010. 
  79. ^ 6 May 1997 – Equal Status Bill, 1997 Office of the President
  80. ^ In re Article 26 and the Equal Status Bill 1997 Supreme Court
  81. ^ Maher, John (26 July 1997). "Haughey's fall from grace does not lighten the burden of the taxpayer". The Irish Times: p. 9. 
  82. ^ a b 30th June 2000 - (a) Planning and Development Bill 1999 and (b) Illegal Immigrants (Trafficking) Bill 1999 Office of the President
  83. ^ In re Article 26 and the Planning and Development Bill 1999 Supreme Court
  84. ^ In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 Supreme Court
  85. ^ 8 April 2002 – Section 24 of the Housing (Miscellaneous Provisions) (No. 2) Bill, 2001 Office of the President
  86. ^ 21st December 2004 - Health (Amendment) (No. 2) Bill 2004 Office of the President
  87. ^ In re Article 26 and the Health (Amendment) (No 2) Bill 2004 Supreme Court
  88. ^ 9 May 2007 – Criminal Justice Bill 2007 Office of the President
  89. ^ a b 22 July 2009 – (a) Defamation Bill 2006 and (b) Criminal Justice (Amendment) Bill 2009 Office of the President
  90. ^ "President signs controversial bills into law". RTÉ.ie. 23 July 2009. http://www.rte.ie/news/2009/0723/crime.html. Retrieved 16 January 2011. 
  91. ^ "President signs Credit Institutions Bill". Irish Examiner. 21 December 2010. http://www.examiner.ie/breakingnews/ireland/president-signs-credit-institutions-bill-486537.html. Retrieved 21 December 2010. 

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