Analysis/Carol Coulter: The decision of the President to refer the Health (Amendment) (No 2) Bill to the Supreme Court will initially be costly for the Government.
Every week's delay in the enactment of the Bill costs it €2.5 million. The clock will now continue to tick for up to two months, the maximum time the Supreme Court can take to deliver its judgment.
But if that judgment is favourable, it will protect the Bill from constitutional challenge for all time, and clear the way for the Government to make deductions from the pensions of old people for their residential care into the future.
Based on previous experience, the chances of the Supreme Court finding the Bill repugnant to the Constitution are not high. The President has referred Bills to the Supreme Court on 14 occasions since the provision was introduced in the 1937 Constitution. On only one occasion was a Bill found to be unconstitutional, and three aspects of another Bill, the Employment Equality Bill, were found to be unconstitutional following referral by the then President, Mrs Mary Robinson. The Bill that was rejected totally was the Matrimonial Homes Bill of 1993, which was found by the court to violate Article 41 of the Constitution, protecting the family from attack.
The court found that this Bill, which sought to give wives equal right to the family home, effectively forced all married couples into joint ownership of the family home, thereby interfering in a family decision.
Often the issue in a Bill which causes most public criticism is found not to be repugnant to the Constitution. The section of the Employment Equality Bill, which allowed for discrimination on religious grounds to employers in areas where it was necessary to guard the ethos of the institution, was widely criticised before its referral.
In the event the court found that section to be compatible with the Constitution, but found another section, requiring employers to make special provision for people with disabilities, interfered with employers' property rights.
It is worth noting that the first Bill and the sections of the other Bill found repugnant to the Constitution did not affect any major policy objective of the State.
Twelve of the 14 referred Bills have survived the challenge of Supreme Court referral unscathed. This is because they start out with an inbuilt advantage - the presumption of constitutionality that all Bills passed by the Oireachtas enjoy. This means that the burden of proof lies on those arguing against the constitutionality of the Bill.
This principle was laid down in the very first referral - the 1940 Offences Against the State (Amendment) Bill - where the Supreme Court ruled that the "repugnancy must be clearly established".
If the sections of the Bill dealing with retrospection were to be struck down, the State would be liable for hundreds of millions of euro in repayments, and this will be a factor in the Supreme Court's deliberations. The Constitution already gives protection against referral by the President to any Money Bill, suggesting that the intention of the framers was to protect this area of Government activity.
The court has also shown itself reluctant in the past to give judgments that might unravel charges imposed by the State on its citizens, where this would lead to "fiscal chaos".
At least five judges of the Supreme Court will hear this case, and, barring illness or accident, it will be made up of the most senior among them. The decision will be made by majority.
There is no need for unanimity, and even the existence of a minority opinion in the court, if it exists, cannot be disclosed.
The majority of this particular Supreme Court has shown itself reluctant in the past to stray into areas it deems lie primarily within the competence of the Oireachtas. This, combined with the presumption that all Bills passed by the Oireachtas enjoy, makes it unlikely that it will be rejected.
Yet this could still happen. The Bill was drafted in a great hurry, to meet an immediate financial and political necessity. This increases the likelihood that it contains constitutional weaknesses unseen by the drafters and the Attorney General. Many lawyers have expressed grave doubts about its attempt to retrospectively justify money illegally taken, and prevent people from reclaiming it, which could be found to infringe constitutional property rights.
It will be up to the lawyers appointed by the court to identify and argue such weaknesses irrefutably. If that happens, the court will, of course, find the Bill unconstitutional and the Government will have to redraft it.
If it is found to be constitutional, however, it will be immune from any challenge in the future, even if an individual finds it contains previously unargued infringements of his or her constitutional rights.
The Government will then be home free, subject to only one qualification - that the Bill does not also infringe an Article of the European Convention on Human Rights, to which the Irish courts must pay attention since January this year. If it seems it does, this could still be argued in the courts.