Having considered the Defence (Amendment) Bill 2024 (the Bill) and the advice of the Council of State (pictured left), on Wednesday, 17 July 2024, the President signed the Bill and it accordingly become law as the Defence (Amendment) Act 2024 (the 2024 Act; update: available here). Section 103(1) of the Defence Act, 1954 (consolidated here) (the 1954 Act) provides that members of the Permanent Defence Force from “shall not join, or be a member of, or subscribe to, any political organisation or society”. Section 11 of the 2024 Act adds a new subsection (1A) to section 103 of the 1954 Act, providing that a member of the Permanent Defence Force shall not:

(a) while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force—

(i) make, without prior authorisation from the member’s commanding officer, a public statement or comment in relation to a political matter or matter of Government policy, or
(ii) attend a protest, march or other gathering in relation to a political matter or matter of Government policy,

(b) canvass on behalf of, or collect contributions for, any political organisation or society, or
(c) address a meeting of a political organisation or society.

In my previous post, I considered the legislative history of this section. In this post, I want to look at its constitutionality. A starting point is the decision of Sanfey J in Bright v Minister for Defence [2024] IEHC 289 (14 May 2024), which featured in the Seanad debates about the section. It concerned a written Order of the Defence Forces (29 August 2018) made pursuant to section 103(1) of the 1954 Act:

1. … there may be some unofficial parades and protests on behalf of members of the … [Defence Forces] in the coming weeks.
2. … attendance in uniform or civilians at such events … [is] NOT compatible with military service.
3. Members of the … [Defence Forces] should be aware that they should NOT attend such unofficial parades and protests.

Sanfey J ([166]) considered that the phrase “subscribe to” in section 103(1) is ambiguous and unclear. As such, he held (ibid) that the phrase “must be interpreted in the context of the preceding words ‘join’ or ‘be a member of’; effectively, that it is the third in a series of words with a connected meaning, and must be interpreted in conjunction with those terms”. He held ([171]) that the subsection “prohibits active involvement …; in this context, “subscribe to” could refer to the payment of a subscription or a financial donation; or active involvement …, such as handing out leaflets or canvassing support or, indeed, taking part in the organisation of a parade or other event”. And he concluded ([172], [184]) that attendance at a parade, without more, could not constitute subscribing to the organisation arranging the parade:

172. … Soldiers who would attend an event … in civilian clothing, not speaking at the event or taking part in its organisation in any way, but who simply would have turned up, listened to what was said and chatted to some former comrades, could not in my view be deemed to be “subscribing to” the WPDF [the Wives and Partners of the Defence Forces; the organisation arranging the parade]; nor do I think that the fact that any soldier who would have attended the event would have sympathised with the aims and objectives of the WPDF means that such a soldier was “subscribing to” the WPDF. Indeed, it seems to me that the attendance of soldiers in civilian clothing, in circumstances where they pointedly took no part in the activities or organisation of the parade other than listening and observing, would seem to me to be indicative of a conscious decision not to “subscribe to” the entity which organised the event.

Hence, he held ([188], [211]) that section 103(1) of the 1954 Act did not provide a statutory basis or justification for the making of the Order, which was therefore ultra vires ([219], [235]). Moreover, he held that the Order was a disproportionate restriction on the right to freedom of assembly in Article 40.6.1(iii) of the Constitution (ibid; cp Dundalk Racing [(No 1)] [2014] IEHC 60 (19 February 2014) (Hogan J); cf Director of Public Prosecutions (Coffey) v Bennet [2018] IECA 9 (25 January 2018)): it was “arbitrary, unfair and based on irrational considerations” ([218]); the “somewhat nebulous and ill-defined purpose of the Order” did not warrant a “wholesale, blanket curtailment” of constitutional rights ([216]); and it “was a ‘blunt instrument’ which went much farther than necessary” ([214]).

The lessons of Bright v Minister for Defence are twofold. The first lesson of Bright is that, as matter of interpretation, section 103(1) of the 1954 Act provides a basis for restricting only the active involvement of members of the Defence Forces in political matters such as parades or protests. Section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act, goes much further. There does not seem to be anything in section 103(1A) that is as ambiguous as “subscribe to” in section 103(1). Hence, as a matter of interpretation, section 103(1A) covers the conduct that was sought to be prohibited by the Order at issue in Bright. It was this breadth of section 103(1A) that proved controversial in the Oireachtas.

The second lesson of Bright is that, as a matter of principle, section 103(1) could not justify a disproportionate restriction on constitutional rights, such as the right to freedom of assembly. Moreover, given the controversial breadth of section 103(1A), the question arises as to whether it is a disproportionate restriction on constitutional rights, such as the right of citizens “to express freely their convictions and opinions” contained in Article 40.6.1(i). That right is now understood, broadly speaking, as a freedom of political expression, concerned with the public activities of citizens in a democratic society (see Murphy v Irish Radio and Television Commission [1999] 1 IR 12, 24, [1998] 2 ILRM 360, 372, (28 May 1998) [37]-[44] (doc | pdf) (Barrington J; Hamilton CJ, O’Flaherty, Denham, and Keane JJ concurring) building on Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf) (Barrington J)). In Dillon v Director of Public Prosecutions [2007] IEHC 480 (4 December 2007) (pdf; noted here), de Valera J struck down section 3 of the Vagrancy (Ireland) Act 1847 as a vague statutory restriction upon begging that infringed various provisions of the Constitution, including Article 40.6.1(i). And, in Tallon v Director of Public Prosecutions [2022] IEHC 322 (31 May 2022) [124], [136] (noted here on this blog), Phelan J held that an anti-social behaviour order made by the District Court, pursuant to section 115(1) of the the Criminal Justice Act, 2006 amounted to a disproportionate restriction on the applicant’s Article 40.6.1(i) right. Broadly speaking, Bright is the equivalent holding in respect of Article 40.6.1(iii).

Here, section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act, prohibits a great deal of political expression, including public statements or comments “in relation to a political matter or matter of Government policy”, and addressing “a meeting of a political organisation or society”. It plainly engages the freedom of political expression, concerned with the public activities of citizens in a democratic society, protected by Article 40.6.1(i) of the Constitution. As Hogan J (concurring in part) said in Higgins v Irish Aviation Authority [2022] IESC 13_4 (07 March 2022 [33], “the right of free speech and free expression is the life blood of the democratic, rule of law based State envisaged by Article 5 of the Constitution and this … must inform our understanding of the extent and scope of the guarantee of the free expression of convictions and opinions in Article 40.6.1(i)” (and see also his remarks in Doherty v Referendum Commission [2012] IEHC 211 (06 June 2012) [24] (noted here on this blog )). Moreover, the “right to freedom of association … is essential to the exercise of various other rights such as the right to engage effectively in political speech …” (Equality Authority v Portmarnock Golf Club [2010] 1 IR 671, 724, [2009] IESC 73 (03 November 2009) (Hardiman J); MK (Albania) v Minister for Justice & Equality [2022] IESC 48_3 (24 November 2022) [15] (Hogan J)).

In the US, political speech is central to the meaning and purpose of the First Amendment, and First Amendment protection is at its zenith there, triggering strict scrutiny, by which the state must demonstrate that a restriction is narrowly tailored to serve a compelling state interest (see, eg, Meyer v Grant 486 US 414 (1988); Citizens United v FEC 558 US 310 (2010); Minnesota Voters Alliance v Mansky 585 US 1 (2018)). Indeed, in New York Times v Sullivan 376 US 254, 273–76 (1964) Brennan J held that “debate on public issues should be uninhibited, robust, and wide-open”, and that “the central meaning of the First Amendment” is that restraint upon criticism of government and public officials is inconsistent with the First Amendment.

Similarly, under Article 10 of the European Convention on Human Rights, freedom of expression constitutes one of the essential foundations of a democratic society (Handyside v UK 5493/72, (1976) 1 EHRR 737, [1976] ECHR 5 (7 December 1976) [49]; Dareskizb Ltd v Armenia 61737/08, [2021] ECHR 760 (21 September 2021) [77]), and freedom of political debate is at the very core of the concept of a democratic society (Lingens v Austria 9815/82, (1986) 8 EHRR 407, [1986] ECHR 7 (8 July 1986); Almeida Arroyo v Portugal 47238/19, [2024] ECHR 226 (19 March 2024) [62]). Hence, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means (Andrey Rylkov Foundation v Russia 37949/18 [2024] ECHR 535 (18 June 2024) [88]). Consequently, the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician (Castells v Spain 11798/85, (1992) 14 EHRR 445, [1992] ECHR 48 (23 April 1992) [46]; Mukhin v Russia 3642/10, [2021] ECHR 1063 (14 December 2021) [123]). There is, therefore, little scope for restrictions on political speech or on debate on matters of public interest (Wingrove v UK 17419/90, (1997) 24 EHRR 1, [1996] ECHR 60 (25 November 1996) [58]; Antunes Emídio and Soares Gomes da Cruz v Portugal 75637/13, [2019] ECHR 637 (24 September 2019) [40]).

The Supreme Court of Canada has also held that political expression lies at the core of the guarantee of free expression. Political expression enriches political discourse, and warrants a high degree of constitutional protection (eg, Harper v Canada [No 2] [2004] 1 SCR 827, 2004 SCC 33 (18 May 2004) [66], [84] (Bastarache J for the Court)). Again, liberal democracy demands the free expression of political opinion, and that political speech lies at the core of the Canadian Charter of Rights and Freedoms’ guarantee of free expression. Hence, political speech is the single most important and protected type of expression. It lies at the core of the guarantee of free expression. The right of the people to discuss and debate ideas forms the very foundation of democracy (ibid, [1], [11], [12] (McLachlin CJ and Major J, concurring in part and dissenting in part); see also Greater Vancouver Transportation Authority v Canadian Federation of Students [2009] 2 SCR 295, 2009 SCC 31 (10 July 2009) [80] (Deschamps J for the Court); R v Guignard [2002] 1 SCR 472, 2002 SCC 14 (21 February 2002) [19]-[20] (Lebel J for the Court)).

If the judgment of Barrington J in Murphy, and statements of Hogan J in Higgins and Doherty mean that the Irish courts are taking an approach to the protection of political expression similar to that of the US Supreme Court, the European Court of Human Rights, and the Supreme Court of Canada, then restrictions must satisfy the strictest of scrutiny or the strongest application of the proportionality test. For example, in Murphy v IRTC [45]-[46], Barrington J explained that, when there is a restriction on a constitutional right, the state can justify it if it meets a legitimate aim and is proportionate to that aim. To be proportionate, the means chosen to achieve the legitimate aim must

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
(b) impair the right as little as possible, and
(c) be such that their effects on rights are proportional to the objective …

(Murphy v IRTC [46] (Barrington J), following Heaney v Ireland [1994] 3 IR 593, 607, [1994] 2 ILRM 420, 431 (Costello P); see now O’Doherty v Minister for Health [2022] IESC 32 (5 July 2022)).

There is no doubt that the courts would accept the protection of the apolitical nature of the Defence Forces as a legitimate aim to provide a prima facie justification for a restriction upon constitutional rights such as is contained in section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act (see, mutatis mutandis, Rekvényi v Hungary 25390/94, (2000) 30 EHRR 519, [1999] ECHR 31 (20 May 1999) [41], [46]). However, it is far less clear whether such an expansive restriction would be proportionate. In Bright, Sanfey J held that the broad prohibitions in the Order of the Defence Forces (29 August 2018) constituted a disproportionate restriction on the right to freedom of assembly protected by Article 40.6.1(iii) of the Constitution; the Order “was a ‘blunt instrument’ which went much farther than necessary” ([214]). It may very well prove to be the case that, by analogy, the broad restrictions in section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act, would constitute a disproportionate restriction not only Article 40.6.1(iii) but also upon the freedom of political expression protected by Article 40.6.1(i). Certainly, it is hard to see how prohibitions on public statements or comments “in relation to a political matter or matter of Government policy”, and addressing “a meeting of a political organisation or society”, impair the freedom of political expression “as little as possible” to protect the apolitical nature of the Defence Forces. The restraint in section 103(1A) of the 1954 Act upon criticism of government and public officials would fall foul of the First Amendment standards set out above. Similarly, under Article 10 ECHR, where the limits of permissible criticism are wider with regard to the Government, the section would also fall foul of the Convention standards set out above. As with the Order at issue in Bright, section 103(1A) of the 1954 Act seems to be a blunt instrument that goes much farther than necessary.

On the other hand, in the US, practical realities, such as the need for efficiency and effectiveness in government service, may justify restrictions upon the political speech protected by the First Amendment, provided they are content neutral and appropriately limited (Civil Service Commission v Letter Carriers 413 US 548 (1973); Waters v Churchill 511 US 661 (1994); Heffernan v City of Paterson 578 US 266 (2016)). Moreover, the Supreme Court upholds the constitutional tradition of a politically neutral military in the First Amendment context (Parker v Levy 417 US 733 (1974); Greer v Spock 424 US 828 (1976)). Hence, courts give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest (Goldman v Weinberger 475 US 503 (1986). But deference cannot mean automatic acceptance of all of the interests asserted by the military. Rather, the standard of review is lower in the military context; rather than applying strict scrutiny, the courts have held that the military may restrict speech that “interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops” (United States v Wilcox 66 MJ 442 (CAAF, 2008)).

In the ECHR, the Court has held that civil servants qualify for the protection of Article 10 of the Convention (Vogt v Germany 17851/91, (1996) 21 EHRR 205, [1995] ECHR 29 (26 September 1995) [53]) and that it is for the Court to determine whether a fair balance has been struck between the fundamental right of the individual to freedom of expression and the legitimate interest of a democratic State in ensuring that its civil service properly furthers the purposes enumerated in Article 10(2) (Eminagaoglu v Turkey 76521/12, [2021] ECHR 180 (09 March 2021) [120]). Moreover, the Court has held that

Article 10 does not stop at the gates of army barracks. It applies to military personnel as to all other persons within the jurisdiction of the Contracting States. Nevertheless, as the Court has previously indicated, it must be open to the State to impose restrictions on freedom of expression where there is a real threat to military discipline, as the proper functioning of an army is hardly imaginable without legal rules designed to prevent servicemen from undermining it … It is not, however, open to the national authorities to rely on such rules for the purpose of frustrating the expression of opinions, even if these are directed against the army as an institution.

(Grigoriades v Greece 24348/94, (1999) 27 EHRR 464, [1997] ECHR 93 (25 November 1997) [45]; see also Ayuso Torres v Spain 74729/17, [2022] ECHR 931 (08 November 2022)).

So, even in the military context, the US Courts permit restrictions on speech where it interferes with the orderly accomplishment of a mission or presents a clear danger to discipline. Similarly, the ECHR permits restrictions where there is a real threat to military discipline. It is hard to see how section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act, meets the standards of “a clear danger” or “a real threat” to discipline. National authorities may not frustrate the expression of opinions by serving military personnel, even if these are directed against the army as an institution. Again, it is hard to see how prohibitions on public statements or comments “in relation to a political matter or matter of Government policy”, and addressing “a meeting of a political organisation or society”, would constitute “a clear danger” or “a real threat” discipline.

Of course, a provision of an Act of the Oireachtas is not to be declared invalid where it is possible to construe it in accordance with the Constitution (see, eg, McDonald v Bord na gCon [1965] IR 217, 239 (Walsh J); East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317, 340-341 (Walsh J); Dellway Investments v NAMA [2011] 4 IR 1, [2011] IESC 14 (12 April 2011)) (Murray CJ; Denham J; Hardiman J; Fennelly J); Collins v Minister for Finance [2016] IESC 73 (16 December 2016) [70] (Denham CJ, and O’Donnell, McKechnie, Clarke, Dunne and Charleton JJ, in a joint judgment); CRH plc v Competition and Consumer Protection Commission [2017] IESC 34 (29 May 2017) [74] (MacMenamin J)). However, if section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act, is a disproportionate restriction upon the right to freedom of assembly protected by Article 40.6.1(iii) or the freedom of political expression protected by Article 40.6.1(i) or both, then it is hard to see how a constitutionally conforming interpretation could be essayed.

No doubt versions of these points were made at the Council of State on Monday. But the fact that the President did not refer the Bill under Article 26 means that they will not be ventilated in the Supreme Court. We will not have an authoritative decision on the precise scope of Bright v Minister for Defence and the constitutionality of section 103(1A) of the 1954 Act, as inserted by section 11 of the 2024 Act. However, given the controversy surrounding that section, a challenge to its constitutionality is very likely. It is to be hoped that the protection of the freedom of political communication in Article 40.6.1(i) does not fall on the wrong side of any Bright lines that the courts may draw there.