Having considered the Defence (Amendment) Bill 2024 (the Bill) and the advice of the Council of State (pictured left), the President yesterday (Wednesday, 17 July 2024) signed the Bill and it accordingly become law as the Defence (Amendment) Act 2024 (the 2024 Act; update: available here) (see Irish Times, 17 July 2024). Articles 31 and 32 of Bunreacht na Éireann provides provides for a Council of State to aid and counsel the President. Article 26 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court for a decision on its constitutionality. Last Monday, 15 July 2024, the President convened a meeting of the Council of State (pictured left), to hear from the Council regarding the constitutionality of the Defence (Amendment) Bill 2024. In a statement in advance of the meeting, the President said that he intended “to consult the Council of State in particular on Sections 11 and 24 of the Bill and whether the interference with constitutional rights is disproportionate” (see Irish Times, 12 July 2024). Section 11 of the Bill (now Act) restricts the Article 40.6.1(i) right to political expression of a member of the Permanent Defence “while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force”. Section 24 of the Bill (now Act) provides for a restricted exercise of the Article 40.6.1(iii) right to form associations and unions of members of the Defence Forces (a provision introduced on foot of a settlement in May 2022 of a High Court challenge to a ban on off-duty soldiers from attending Defence Forces protests). In this post and the next, I want to focus on the political speech issue in section 11. This post will look at the journey of the section through the Oireachtas. My next post will consider the constitutional issues that could arise.

The 2024 Act gives effect to the Report of the Commission on the Defence Forces (09 February 2022) and of Building for the Future – Change from Within (the High Level Action Plan for the Report; 13 of July 2022) (both here), which built upon the White Paper on Defence (August 2015) and the White Paper on Defence: Update (December 2019). Elements of the 2024 Act were parts of the government’s response to the Report of the Independent Review Group on Dignity and Equality issues in the Defence Forces (28 March 2023) (arising out of the Women of Honour documentary (RTÉ Radio 1, 2021)). However, section 11 goes further than any of the recommendations in any of those documents. Section 103(1) of the Defence Act, 1954 (the 1954 Act; consolidated here) 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”. In Bright v Minister for Defence [2024] IEHC 289 (14 May 2024) (discussed below and in the next post) struck down a written Order of the Defence Forces (29 August 2018) precluding attendance at unofficial parades and protests. Nevertheless, 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.

The Explanatory Note to the relevant Head of the General Scheme of the Bill provides that the Head “is consistent with current provisions” of the Defence Force Regulations, which provide that “[p]ersonnel shall not, while in uniform, attend any meeting, demonstration or function of a political character”. And the Explanatory Memorandum (pdf) to the Bill itself said that the “purpose of this new subsection 103(1A) is to clarify the activities of a public or political nature prohibited by individual members of the Permanent Defence Force while in uniform or otherwise identifying as a member of the Permanent Defence Force”. (En passant I note that either the section “is consistent with current provisions” or it “clarif[ies]” them, but it cannot do both, surely?). On the other hand, the Pre-Legislative Scrutiny of the General Scheme of the Bill (April 2024; pdf), conducted by Joint Committee on Foreign Affairs and Defence, considered that it was not clear whether the Head was necessary and proportionate, and recommended that it be amended “to ensure it serves a legitimate aim and is proportionate” (Recommendation 10, page 30).

At the Second Stage in the Dáil (02 May 2024), the Tánaiste and Minister for Defence commented that section 11 is “appropriate and necessary … [and] proportionate to protect the apolitical nature of the Defence Forces”. The point was repeated by the Minister of State. On the other hand, Deputy Réada Cronin described the section as “the effective muzzling of the Defence Forces”; and Deputy Peter Fitzpatrick described the ban on members of the Defence Forces “from commenting on any political matter” as “the most controversial provision” in the Bill. At Committee Stage (23 May 2024), Deputy Brendan Howlin said that preventing a member of the Defence Forces from commenting on a matter of Government policy “would be an extraordinary restriction”; Deputy Matt Carthy described it as “a restriction on members of the Defence Forces that goes way beyond anything that any other person in our society has to deal with”; Deputy Cathal Berry added that “[r]educing people’s constitutional rights would be highly unlikely to incentivise someone to join or stay”; Deputy David Stanton described the section as “very loose and open to all kinds of interpretations”; and Deputy Matt Carthy made a similar point. Proposed amendments to section 11 and related sections were either defeated or withdrawn; but the Tánaiste undertook to reflect upon them, and indicated, on two occasions, that, in advance of Report Stage, he was prepared to look in particular at the issue of the ban on criticism of Government policy, and to come back with an amendment. At Report and Final Stage in the Dáil (12 June 2024), not only did the Tánaiste not bring forward an amendment to section 11, he described the “apolitical” nature of the Defence Forces as “a strength of our democracy”. He declined all proposed amendments (see, in particular amendments 2-5 here (pdf)) to the section, and they were defeated.

It was the same story in the Seanad. At the Second Stage (18 June 2024), the Tánaiste again defended section 11 as “proportionate to protect the apolitical nature of the Defence Force”. Senator Gerry Horkan called for the deletion of the ban on discussion of “matter[s] of government policy”; Senator Michael McDowell pilloried that ban, and described the remainder of the section as “flaw[ed]”; and Senator Robbie Gallagher said the ban “is over the top, frankly”. The Minister of State reiterated that “the Defence Forces are first and foremost apolitical”. At Committee Stage (3 July 2024), various amendments to section 11 were proposed (see, in particular amendments 2-5 here (pdf)), as Senator McDowell said, to make “people in the Defence Forces free to act on matters which are not the subject of political controversy”. Senator Gerard P Craughwell (a former officer in the Defence Forces) referred to Bright v Minister for Defence (above) and described the effects of the section as “double standards” in the “gagging members of the Defence Forces”. The Tánaiste again referred to the “the importance of an apolitical defence force”, and again expressed his confidence that the section is “necessary and proportionate” to maintaining that end. Senator Joe O’Reilly agreed with the Tánaiste’s “fundamental proposition” that “we should have non-political Defence Forces”. The Tánaiste declined to accept the proposed amendments to section 11, and they were defeated. Similar amendments (see, in particular amendments 1-3 here (pdf)) were defeated at Report Stage (9 July 2024). Senator Tom Clonan (a former officer in the Defence Forces) emphasised that “freedom of expression and the intellectual tradition of the Defence Forces are very important”. Senator Craugwell again referred to Bright v Minister for Defence; and the Tánaiste emphasised that

… as set out in the judgment, the issue under consideration is “a difficult one’ and needs to be dealt with “in a manner which takes account of the interests and sensitivities of all concerned”.

… the judge highlighted that “it is open to the Minister to enact regulations which would make clear the circumstances in which members of the Defence Forces could or could not attend public events”. In the proposed text of the Bill that is exactly what I am setting out to do – clearly and in primary legislation.

It is essential, as I have said, to maintain the apolitical nature of the Defence Forces. …

The judgment in Bright v Minister for Defence highlights that the question “of what members of the Defence Forces may or may not do off duty in relation to matters which might be deemed “political” is a difficult issue; however, it is an area which requires regulation by the Minister … which takes account of the interests and sensitivities of all concerned”. The proposed amendments to section 103 address the very issue identified by the judge in this respect and to do so while distinguishing between the constitutional rights of the individual person and the actions of someone “while in uniform or otherwise making” themselves identifiable as a member of the Defence Forces. Any suggestion that the judgment in Bright v Minister for Defence somehow undermines or otherwise requires the removal of the proposed amendments to section 103, fundamentally misunderstands the issues and the question in the case, and ultimately the findings of the judge.

No doubt versions of these points were made at the Council of State as well. 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. In two earlier posts on this blog (here and here), I considered whether a Chief Justice who has participated in a meeting of the Council of State, after which the President refers a Bill to the Supreme Court, might be open to a reasonable apprehension of having prejudged the substantive issue being referred. If so, the Chief Justice should choose to participate in either that meeting or the Article 26 hearing and decline to participate in the other. On the only occasion on which the current President has referred a Bill to the Supreme Court, the Chief Justice declined to participate because he had already publicly criticised the Bill, and so this possible conflict of interest did not arise. In the event, the Court upheld its constitutionality (see In re Article 26 and the Judicial Appointments Commission Bill 2022 [2023] IESC 34 (08 December 2023)). The photograph at the top right of this paragraph is of the Chief Justice arriving at Áras an Uachtaráin for Monday’s meeting of the Council of State (and he is just about visible in the photograph of the meeting itself: click here or on the photograph at the top left of this post, and zoom in on the sixth person from the front on the left side). However, since the Bill was not referred to the Supreme Court, the question of recusal from the Article 26 hearing did not arise. Furthermore, had the President referred the Bill under Article 26, then the precise scope of Bright v Minister for Defence and the constitutionality of section 11 would have been among the issues arising; and they will be discussed in my next post.