thumb | right | Members of the Council of State of Ireland in January 2012
The Council of State () is a body established by the Constitution of Ireland to advise the President of Ireland in the exercise of many of their discretionary, reserve powers. It also has authority to provide for the temporary exercise of the duties of the president if these cannot be exercised by either the president or the Presidential Commission (an eventuality that is very unlikely to occur, since it would require the simultaneous absence of the President and two members of the three-member Commission).
Members
The Council of State consists of a number of government officials, who sit , as well as certain former office holders and up to seven individuals of the president's own choosing. The members comprise the attorney general as well as individuals from each of three branches of government: legislature, executive and judiciary.
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. These appointees retain their positions until the president's successor takes office.
{|class="wikitable"
|-
! Class
! Office
! Current members
|-
| rowspan=2|Ex officio: executive
|
| Micheál Martin
|-
|
| Simon Harris
|-
| rowspan=2|Ex officio: legislature
|
| Verona Murphy
|-
|
| Mark Daly
|-
| rowspan=3|Ex officio: judiciary
| Chief Justice
| Donal O'Donnell
|-
| President of the Court of Appeal
| Caroline Costello
|-
| President of the High Court
| David Barniville
|-
| Ex officio
| Attorney General
| Rossa Fanning
|-
| rowspan=4|Former officeholders
| President
| Mary Robinson, Mary McAleese, Michael D. Higgins
|-
| Taoiseach
| Bertie Ahern, Brian Cowen, Enda Kenny, Leo Varadkar, Simon Harris
|-
| Chief Justice
| Ronan Keane, Susan Denham, Frank Clarke
|-
| President of the Executive Council of the Irish Free State
| None
|-
|
| (List of former nominees)
| Fionnuala Ní Aoláin, Linda Ervine, Colin Harvey, Kathleen Lynch, Donncha O'Connell, Conor O'Mahony, Ciarán Ó hÓgartaigh
|}
The Constitution explicitly states that members appointed by the President may resign, or be dismissed by the President. Former office holders are members if "able and willing to act as a member", 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 misled the Tribunal, there were calls for him to formally resign from the Council of State. He did not do so, although he sent his regrets to subsequent meetings of the council until his death.
Members of the Council of State may be excused from jury duty.
The Constitution specifies a declaration of office, "in the presence of Almighty God", which a new member must take before attending an official meeting. Éamon Gilmore, a declared agnostic, sought legal advice before attending the 2013 Council meeting as Tánaiste. The 1996 Constitutional Review Group recommended making the religious part optional.
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", 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):
- Convening a meeting of either or both Houses of the Oireachtas
- Addressing the Oireachtas
- Addressing the Nation
- Establishing a committee of privileges to resolve a dispute between the Houses over a putative money bill
- Abridging the time for considering a bill in the Seanad
- Referring a bill to the Supreme Court to test its Constitutionality
- Referring a bill to the people for an "ordinary referendum"
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. 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. although Jim Duffy calls this "more apparent than real" as it has no legislative or judicial functions. Actress Siobhán McKenna, appointed to the council by Patrick Hillery, suggested in the 1980s that the Council approach Ronald Reagan regarding the Troubles in Northern Ireland; Hillery's secretary remarked there was "no point in trying to explain" to McKenna that the council had no role in such matters.
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.
Meetings are held in Áras an Uachtaráin. Members arrive 15 minutes before the meeting starts, and are served light refreshments in the Council of State Room. The Council does not offer collective advice; the President asks each member in turn to comment, and further discussion may involve several members. while James Dooge discussed a 1976 meeting years later with journalist Stephen Collins.
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. The seven new presidential nominees of Mary McAleese's second term were introduced at a luncheon in the Áras the month after their appointment. Campaigning in the 1990 presidential election, Mary Robinson promised to have meetings of the Council regularly rather than on "an emergency basis".
Addresses to the Oireachtas
{|class="wikitable sortable"
|-
! Date of meeting
| Éamon de Valera
| 50th anniversary of the First Dáil
| 21 January 1969
| Brendan Corish was the only absentee from the Council of State meeting.
|-
| 29 June 1992
| Mary Robinson
| "the Irish Identity in Europe"
| 8 July 1992
|
|-
| 24 January 1995
| Mary Robinson
| "Cherishing the Irish Diaspora"
| 2 February 1995
|
|-
| 28 October 1999
| Mary McAleese
| Marking the millennium
| 16 December 1999
| Charles Haughey, Albert Reynolds, and Mary Robinson were absent.
Although the serving Chief Justice is a member of the council, by convention they do not get involved in substantive discussions on the bill, as they will be involved in the deliberations if the bill does get referred.
An act which has passed an Article 26 review cannot subsequently have its constitutionality impugned. Jurists have argued this is dangerous, since an Article 26 review can only consider raise hypothetical issues for consideration, and if an unconsidered issue arises later in a real-world case, a judicial review declaration of unconstitutionality is no longer available as a remedy. President Higgins alluded to this argument when he signed the Planning and Development Act 2024 without consulting the Council of State: he noted doubts about the bill's constitutionality, but said they were "probably best tested in a facts specific way rather than in the abstract". Catherine Connolly made similar comments when choosing not to refer the International Protection Bill 2026.
{|class="wikitable sortable"
|-
!Date of meeting
| The government had unofficially supported the referral, as the 1940 act replaced a section of the Offences against the State Act 1939 which had been found unconstitutional, leading to the release of interned IRA members who soon made a major arms raid. W. T. Cosgrave was the only absent member of the council. 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". Hyde instructed attendees not to discuss "political considerations" or "legal arguments", which limited the value of the meeting.
|-
|
|School Attendance Bill, 1942
|
|
| Hyde's 1940 instruction was not repeated, after De Valera advised Michael McDunphy, Secretary-General to the President, that it was unhelpful.
|Absentees were George Gavan Duffy, Douglas Hyde, Timothy Sullivan, W. T. Cosgrave, and Richard Mulcahy.
|-
|
|Electoral (Amendment) Bill, 1961
|
|Referred and upheld
|
|-
|
|Income Tax Bill, 1966
|
|Signed without referral
|All members attended. On 7 March, before the President announced a decision, the Income Tax (Amendment) Bill, 1967 was introduced and passed by the Oireachtas. This pre-emptively cancelled the contentious sections of the original Bill. Next day, the President signed both bills into law.
|-
|
|Criminal Law (Jurisdiction) Bill, 1975
|
|Referred and upheld
|James Dooge, Cathaoirleach of the Seanad, was absent.
|-
| (a)
| Emergency Powers Bill, 1976
|
|Referred and upheld
| The meeting, which discussed two bills, lasted 4 hours. Maurice E. Dockrell was the only absentee. As the bill was formally stated to be emergency legislation, most Constitutional safeguards did not apply to it.
|Same meeting as preceding
|-
|
|Housing (Private Rented Dwellings Bill), 1981
|
|Referred and struck down
|
|-
|
|Electoral (Amendment) Bill, 1983
|
|Referred and struck down
|Absentees were Siobhán McKenna, Seán MacEntee, and James Dillon. 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 referendums (ordinary or constitutional). The Electoral (Amendment) Act, 1985 extended the franchise for Dáil elections.
|-
|
|Criminal Justice Bill, 1983
|
|Signed without referral
|Siobhán McKenna and Máirín Bean Uí Dhálaigh were absent.
|Absentees were Tom O'Higgins and Jack Lynch.
|-
|
|Fisheries (Amendment) Bill, 1990
|
|Signed without referral
|
|-
|
|Matrimonial Home Bill, 1993
|
|Referred and struck down
|
|-
|
|Criminal Justice (Public Order) Bill, 1993
|
|Signed without referral
|
|-
|
|Regulation of Information (Services Outside the State For Termination of Pregnancies) Bill, 1995
|
|Referred and upheld
|
|-
|
|Employment Equality Bill, 1996
|
|Referred and struck down
|15 of 22 members attended, including the Taoiseach. After the bill was struck down, the Employment Equality Act 1998 was passed instead.
|-
|
|Equal Status Bill, 1997
|
|Referred and struck down
| Charles Haughey was absent.
|-
| (a)
|Planning and Development Bill 1999
|
|Referred Part V; upheld
|
|-
| (b)
|Illegal Immigrants (Trafficking) Bill 1999
|
|Referred §§ 5 and 10; upheld
| Same meeting as preceding
|-
|
|Section 24 of the Housing (Miscellaneous Provisions) (No. 2) Bill, 2001
|
|Signed without referral
|
|-
|
|Health (Amendment) (No. 2) Bill 2004
|
|Referred and struck down
|Charles Haughey was the only absentee.
|
|-
| (a)
|Defamation Bill 2006
|
|Signed without referral
| 19 of 22 members of the council were present; the meeting lasted over 3 hours. See also blasphemy law in Ireland.
|-
| (b)
|Criminal Justice (Amendment) Bill 2009
|
|Signed without referral
|See 2008–2011 Irish banking crisis
|-
|
| Protection of Life During Pregnancy Bill 2013
|
| Signed without referral
| See Protection of Life During Pregnancy Act 2013. Of 24 members, 21 attended; Mary Robinson, John Bruton and Albert Reynolds were absent, though Robinson and Bruton made written submissions. The meeting ran from 3.15pm to 6.45pm.
| Liam Cosgrave, Mary Robinson and Gearóid Ó Tuathaigh did not attend. The press release stated the meeting would consider whether:
- sections 56 and 57 of the bill violated any part of the Constitution
- any part of the bill violated Article 42A of the Constitution
- section 78 of the bill violated Article 29.6 of the Constitution
|-
|
| Judicial Appointments Commission Bill 2022
|
| Referred §§ 9, 10, 39, 40(2), 42, 43, 45, 46, 47, 51, 57 and 58; upheld.
| There was concern that the bill restricts the Government's discretion in appointing judges.), Bertie Ahern (in the US Discussion focused on §§ 47 and 51.
|-
|
| Defence (Amendment) Bill 2024
|
| Signed without referral
| Defence Forces representative groups had expressed concern that sections 11 and 24 of the bill would unduly constrain their activities. The meeting lasted from about 3pm to 5.30pm. Seán Ó Fearghaíl, Brian Cowen and Mícheál Martin were absent.
|-
|
| International Protection Bill 2026
|
| Signed without referral
| The bill, implementing the EU's New Pact on Migration and Asylum, has been criticised by the Irish Human Rights and Equality Commission and Irish Refugee Council as infringing rights of asylum seekers and rights of refugees to family reunification. The President expressed significant concerns with the bill but signed it to allow future court challenges via litigation. Of 25 members, 23 attended, with only former Taoisigh Bertie Ahern and Brian Cowen being absent.