The decision by President Michael D Higgins to convene the Council of State on Monday for consultations on the Protection of Life During Pregnancy Bill is a sensible exercise of his constitutional prerogative on this difficult and controversial Bill. Article 26.1 allows that "The President may, after consultation with the Council of State, refer any Bill to which this Article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bills is or are repugnant to this Constitution." Should he do so and the court finds the Bill repugnant to the Constitution then it cannot become law. If the court upholds the Bill, he must sign it and its constitutionality can never again be challenged – for some Bill supporters such protection against future challenge makes referral appealing.
This is a discretionary power relatively rarely exercised, and it has not been unusual for the Council of State to be summoned and the Bill then not referred on; Mary McAleese did not refer Bills on five of the eight times she summoned the council for Bill scrutiny.
The current Bill is unusual, however, in one particular respect. Unlike the other 15 Bills referred by Presidents to the court since 1940, it was enacted as a response to a specific request by the Supreme Court for a legislative framework to support a decision it had made, in this case the X case. In ruling on X, however, the court was not prescriptive on detail, giving the Oireachtas what lawyers would call a margin of appreciation on how to frame any legislation – it would be odd if the court now found that a Bill which had been drafted carefully, specifically with the court's mandate in mind, had strayed beyond that remit. And there has been little in the expert legal discussion of the Bill to suggest that it has.
Gerry Whyte of the TCD law school has argued in these pages that although a number of issues may give rise to theoretical constitutional problems – time limits, the scope of conscientious objection, the absence of an appeal against the decision to grant an abortion, the issue of foetal abnormality, and even whether X is binding – most touch on rights that are by no means absolute and would seem to fall within the realms of the discretion legislators have. None would appear to raise sufficient constitutional doubts to make referral an imperative.
The President may well also be urged by the Chief Justice as a member of the Council of State not to refer on the Bill. Members of the judiciary are known not to be enamoured of the referral process. They find ruling on theoretical issues of constitutionality uncomfortable, prefering to decide issues on the basis of a concrete case. In the circumstances, a decision by the President to sign the Bill without reference to the court would appear reasonable and a proper exercise of his discretion.
