President Michael D Higgins has taken the “very unusual” step of suggesting concerns around the Government’s Planning Bill without referring it to the Supreme Court, legal experts have said.
In a statement on Thursday morning confirming that he had signed the Planning and Development Bill 2023 into law, President Higgins said that he was not exercising his right to refer it to the Supreme Court to test its constitutionality. However, he said he had taken note of issues raised “including in particular the discussion on a citizen’s constitutional right to access to justice” and the possible issue of compliance with the Aarhus Convention, an international agreement that gives people the right to access information about the environment.
His statement outlined that issues were “probably best tested in a facts-specific way rather than in the abstract”.
The statement goes on to suggest that a dedicated case taken to the Supreme Court would be more appropriate than a referral under his own constitutional powers – after which, if the court found the Bill to be constitutional no further challenge could be taken.
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Áras an Uachtaráin noted that President Higgins’s decision “leaves it open to any citizen to challenge the provisions of the Bill in the future”.
Prof David Kenny of the Trinity College law school said the statement was “unusual”.
“I am not aware of this sort of statement being issued by a President before, where specific constitutional and legal concerns around a Bill have been suggested but no reference made,” he said, adding that it was interesting Mr Higgins did not convene the Council of State, comprised of senior figures from the judiciary, politics and civil society, before reaching his conclusion.
Prof Kenny said nonetheless the President’s reasons for not referring the Bill were “cogent”, and that compliance with the Aarhus Convention would be “difficult or impossible” to review in the abstract context of a referral from the President.
Prof Laura Cahillane, an associate professor in the University of Limerick school of law, concurred that it was “rather unusual to acknowledge that there are potential issues of unconstitutionality in a Bill” but then decide to not even call the Council of State to discuss it.
“Even issuing a statement following a decision such as this is unusual since a President is not required to give reasons,” she said, while noting that he took a similar step in relation to a Bill relating to access to records of mother and baby homes. She said that on that occasion, however, he said that Bill did not directly raise a constitutional issue suitable for a referral.
She said that immunity from challenge following a Supreme Court decision that legislation is constitutional arising from a presidential referral is something that should be looked at again as it means Presidents are often reluctant to refer Bills to the court. “But no President has ever pointed to potential concerns with a Bill but then said they would sign it anyway because it would be better for challenges to take place organically in the courts – it is a very unusual statement.”
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