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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]
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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]
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.
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]
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] |
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 | Douglas 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 | Douglas Hyde | Referred and struck down[41][42] | |
13 August 1947 | Health Bill, 1947 | Seán 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 | Éamon de Valera | Referred and upheld[45][46] | |
6 March 1967 | Income Tax Bill, 1966 | Éamon 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 | Cearbhall Ó Dálaigh | Referred and upheld[52][53] | James Dooge, Cathaoirleach of the Seanad, was absent.[54] |
23 September 1976 (a) | Emergency Powers Bill, 1976 | Cearbhall 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 | Cearbhall Ó Dálaigh | Signed without referral[58] | Same meeting as preceding |
22 December 1981 | Housing (Private Rented Dwellings Bill), 1981 | Patrick Hillery | Referred and struck down[59][60] | |
20 December 1983 | Electoral (Amendment) Bill, 1983 | Patrick 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 | Patrick Hillery | Signed without referral[66] | Siobhán McKenna and Máirín Bean Uí Dhálaigh were absent.[28] |
22 June 1988 | Adoption (No. 2) Bill, 1987 | Patrick Hillery | Referred and upheld[67][68] | Absentees were Tom O'Higgins and Jack Lynch.[69] |
30 October 1991 | Fisheries (Amendment) Bill, 1990 | Mary Robinson | Signed without referral[70] | |
1 December 1993 | Matrimonial Home Bill, 1993 | Mary Robinson | Referred and struck down[71][72] | |
1 March 1994 | Criminal Justice (Public Order) Bill, 1993 | Mary Robinson | Signed without referral[73] | |
16 March 1995 | Regulation of Information services outside the State for Termination of Pregnancies Bill, 1995 | Mary 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 | Mary Robinson | Referred and struck down[76][77] | 15 of 22 members attended, including the Taoiseach.[78] |
6 May 1997 | Equal Status Bill, 1997 | Mary Robinson | Referred and struck down[79][80] | Charles Haughey was absent.[81] |
30 June 2000 (a) | Planning and Development Bill 1999 | Mary McAleese | Referred Part V; upheld[82][83] | |
30 June 2000 (b) | Illegal Immigrants (Trafficking) Bill 1999 | Mary 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 | Mary McAleese | Signed without referral[85] | |
21 December 2004 | Health (Amendment) (No. 2) Bill 2004 | Mary McAleese | Referred and struck down[86][87] | Charles Haughey was the only absentee.[17] |
9 May 2007 | Criminal Justice Bill 2007 | Mary McAleese | Signed without referral[88] | |
22 July 2009 (a) | Defamation Bill 2006 | Mary 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 | Mary McAleese | Signed without referral[89] | Same meeting as preceding |
21 December 2010 | Credit Institutions (Stabilisation) Bill 2010 | Mary McAleese | Signed without referral[91] | See 2008–2010 Irish banking crisis |