The decision of President Michael D Higgins to express concern about too many Bills being sent to his office for consideration prior to the summer recess is "absolutely legitimate", according to a number of experts on constitutional law.
The role of the President in scrutinising Bills for their constitutionality before signing them into law is one of his most important constitutional duties, according to David Kenny, associate professor of law at Trinity College Dublin.
“I absolutely see the President’s point and I think it is an absolutely legitimate one to raise,” he said. “He is saying: I can’t operate if you operate like this. I think that is absolutely fair.”
Under article 26 of the Constitution, the President has seven days to decide if a Bill that has been sent to him should be referred to the Supreme Court for a decision on its constitutionality.
If the court, in such an instance, decides that the proposed law is constitutional, then it cannot be challenged again.
This provision is problematic, says Dr Laura Cahillane, senior lecturer in the School of Law at the University of Limerick.
“When the Supreme Court is hearing the case, they are hearing it in a vacuum. The argument is all theoretical; there is no actual practical case to be heard.”
A scenario that has not been envisaged by the court can later emerge, but the opportunity to challenge the law is not available, because it has the “seal of constitutionality” from the earlier court ruling.
Because of this, she says, presidents may feel there has to be a very high threshold of concern before they refer a proposed law to the court.
She believes the President had no choice but to express his concerns if he is finding he is being put under too much pressure to make his decisions in the timeframe available.
Unseemly haste
The President also expressed concern about the amount of time being devoted by the Oireachtas to scrutinising some Bills, saying an “unseemly end of term haste” is sometimes evident.
Eoin O’Dell, also an associate professor of law at Trinity College Dublin, believes the President is fully entitled to make this point publicly, because it concerns an aspect of the work of the Oireachtas that directly affects the work of the President.
If the Oireachtas is not doing its job adequately, then this increases the burden on the President.
“There are times when truncating debate is appropriate, but it should be unusual and not routine, and pointing out that it is becoming routine is a perfectly legitimate part of his job, as far as I am concerned. He is part of the law-making process.”
There have been 15 Bills referred to the Supreme Court under article 26, with the first (the Offences against the State Amendment Bill) being referred in January 1940, and the most recent – the Health Amendment (No 2) Bill – being referred in December 2004.
After the court ruled in 1940 that the Bill it had considered was not repugnant to the Constitution, the government of the day, led by Eamon De Valera, introduced an omnibus Bill that included a number of amendments to the 1937 Constitution.
No dissent
One of the changes stipulated that there could be no dissenting opinions in Supreme Court decisions under article 26, and another that when a proposed law had been approved under the article 26 process, it could not be challenged again.
There is no “grand design” behind the second of these two changes, according to Kenny, and one of the effects of the measure is that the court may be inclined to err on the side of caution, and find against a proposed law, just in case it’s implementation later throws up unforeseen problems.
Kenny says it is a pity that the provision of referring Bills to the Supreme Court appears to have fallen into disfavour since the referral of the 2004 Bill – which was concerned with charges to residents of nursing homes and was declared unconstitutional by the Supreme Court.
“It is a very useful procedure, and I think it is a shame that it has fallen off in the way that it has.”
