Council of State examines laws stopping Defence Forces commenting publicly on politics

The representative body of the Defence Forces, Raco, described the prohibition as 'draconian'.

The Council of State met on Monday afternoon to examine whether laws that prohibit Defence Forces members from speaking publicly about political matters are constitutional.

President Michael D Higgins convened the meeting to consider the constitutionality of the Defence (Amendment) Bill 2024, which passed through the Oireachtas last week.

The purpose of the overall bill is to establish a statutory external oversight body for the Defence Forces, one of the key recommendations from the recent Independent Review Group on Dignity and Equality issues in the Defence Forces.

However, the bill also restricts the ability of serving Defence Forces members from speaking out publicly on political matters without permission from a commanding officer.

This section of the bill, alongside one other, has been highlighted by President Higgins for the council to consider whether or not it is constitutional.

These sections have been widely criticised by representative bodies of the Defence Forces, PDFORRA and Raco, with it being described as “draconian” by the latter.

The council itself is comprised of ex-officio members, including the Taoiseach and Tánaiste, as well as former Government office holders and select appointed members.

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Members of the council are set to give their own view on the legislation, while the President will then consider their recommendations before deciding whether or not to refer it to the Supreme Court.

Convening the Council of State is rare, with the body only meeting to consider the constitutionality of legislation 39 times throughout the history of the State. However, this is the fourth piece of legislation President Higgins has convened the Council of State to consider since he took office.

It is expected that President Higgins will make a decision on whether or not to refer the bill to the Supreme Court on Wednesday.

'Gagging order'

Junior defence minister Jennifer Carroll MacNeill denied that the legislation amounted to a “gagging order” for Defence Forces members and said that it was an effort to modernise the army.

Speaking on RTÉ’s Morning Ireland, Ms Carroll MacNeill said that the overall provisions of Defence Forces members being apolitical would not be changed beyond what was set out in both 1954 and 1990.

She said that the legislation would allow both PFFORRA and Raco as associate members of the ICTU trade union.

“What we’re trying to say though is that a member of the Defence Forces, in uniform, cannot participate in a protest, but if you’re not in uniform of course you can,” Ms Carroll MacNeill said.

Pressed on the specifics of the legislation, Ms Carroll MacNeill said that it would not prevent Defence Forces members from speaking on pay and conditions.