Teasc Gaeilge an Reifrinn Posta

Dr Seán Ó Conaill

Leagan Béarla Anseo / An English Language Version of this piece can be found here

Tá an-chuid plé faoin leagan Gaeilge den fhoclaíocht den Reifreann Posta le déanaí tar don phíosa seo a bheith san Irish Times.

Is é seo leanas an leagan oifigiúil i nGaeilge;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

Má dhéantar aistriú liteartha ar sin go Béarla faightear rud éigin ar nós;

“Two persons, whether they be men or women, may contract in relation to marriage in accordance with law”.

Ach deir an leagan oifigiúil i mBéarla

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

Is teasc dhá theangach í Bunreacht na hÉireann. Dréachtaíodh í i mBéarla agus i nGaeilge cé go raibh tús áite ag an mBéarla sa phróiseas.imagesCAW77Z4F Ní féidir linn a rá in aon chur gur aistriúcháin simplí atá i gceist. Tá iomaí sampla sa teasc féin a chruthaíonn go bhfuil I bhfad níos mó i gceist seachas aistriúcháin simplí. Míníonn mo chomhghleacaí ón Roinn Nua Ghaeilge Dr Neil Buttimer an pointe seo san fís atá le fáil anseo.  An sampla is mó le rá b’fhéidir ná an aois atá ag teastáil le hOifig an Uachtaráin a ghlacadh in Airteagal 12.4.1. Sa teasc Bhéarla braitear go bhfuil botún sa tslí go ndeir an Bunreacht go bhfuil gá go mbeadh duine sa 35ú bhliain (eg 34 bliain d’aos) ach sa teasc i nGaeilge tá riachtanais go gcaithfidh go bhfuil an 35ú slán ag duine. In Airteagal 29.3 atá bunaithe ar an dlí idirnáisiúnta tá an frása “ina dtreoir” nach bhfuil sa teasc i mBéarla in aon chur. Tá uaireanta ann leis nuair atá an teasc Gaeilge á úsáid le pointe polaitiúil nó náisiúnach a dhéanamh mar shampla in Airteagal 8.2 tugtar Sasc-Bhéarla seachas Béarla ar an tarna teanga oifigiúil – níl aon éifeacht dhlíthiúil aige seo ach is léir go bhfuil pointe á dhéanamh.

Tuigimid ó Airteagal 25.4.5 nuair atá coimhlint idir an teasc i mBéarla supreme courtagus i nGaeilge go mbíonn tús áite ag an teasc i nGaeilge. Tugann sé seo ról lárnach don Ghaeilge sa chóras bunreachtúil ach go praiticiúil ní minic go mbíonn difir shoiléir idir an míniú dlíthiúil idir an teasc i mBéarla agus i nGaeilge. Tarlaíonn sé i bhfad níos minice áfach go mbíonn na teisce i mBéarla á léamh i leith an teasc i nGaeilge le míniú a bhaint aisti agus tharla sé seo in an-chuid cásanna mór le rá  ar nós X v Ireland, Roche v Roche, Doherty v Ireland srl srl.

Nuair a dhéantar dréachtú ar leasuithe bunreachtúil déanta tromlach na hoibre i mBéarla. Is cinneadh polaitiúil í ag deireadh an lae agus dar ndóigh déantar an cinneadh ag bord an rialtais, le cabhair ó dhlíodóirí an rialtais, i mBéarla. Is ag an bpointe seo, nuair atá an teasc i mBéarla deimhnithe go ndéantar an aistriúchán. Ní féidir leis an aistritheoir an teasc i mBéarla a athrú in aon chur agus caithfidh siad an teasc i nGaeilge a chur le chéile go cúramach ag cinntiú go bhfuil an míniú céanna dlíthiúil ag teacht ón dhá theanga. Dár ndóigh tá Béarla agus Gaeilge go hiomlán difriúil mar theangacha, ní féidir aon dá theanga a aistriú focal ar fhocal go simplí. Tá inscne i nGaeilge agus Francis nach bhfuil i mBéarla, tá athruithe ar fhocal i dteangacha Ceilteach nach bhfuil sa Bhéarla srl srl . De dheasca seo ar fad tá post fíor casta ag aistritheoirí agus iad ag obair leis an mbunreacht.

Tá an post seo níos deacra fós toisc go bhfuil stíl agus teanga faoi leith sa bhunreacht sa chéad áit. Caithfidh aistritheoirí a chinntiú go bhfuil leanúnachas ó thaobh teanga de sa Bhunreacht fiú amháin nuair atá forálacha nua á chur leis. Ar leibhéal amháin tá gach seans go mbeadh an t-aistriú seo thíos níos cóngaraí don leagan i mBéarla ach tá roinnt fadhbanna leis;

“Féadfaidh beirt dhaoine, gan idirdhealú ó thaobh gnéis, conradh a dhéanamh i leith pósadh de réir dlí.”

Ach deir an leagan oifigiúil;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

Úsáidtear “cibé acu is fir nó mná iad” ar bhonn leanúnachais toisc go bhfuil an fhoclaíocht sin le fáil chéanna féin sa Bhunreacht mar aistriú ar “every citizen without distinction of sex” in Airteagal 16.1. Níl an focal gnéas sa Bhunreacht in aon chur agus níl fáil air i dTéarmaí Dlí ach oiread. Úsáidtear “beirt” le beirt dhaoine a chur in iúl toisc go bhfuil an leagan sin in úsáid in Airteagal 28.7.2. Ní bháitear úsáid as “idirdhealú” le “distinction” a thabhairt le fios toisc go bhfuil “idirdhealú” in úsáid chéanna féin sa bhunreacht mar aistriúcháin ar “discrimination” .

Cé nach bhfuil an aistriúcháin fhoirfe tá mé féin agus mo chomhghleacaí Dr Conor O’Mahony á rá go bhfuil rialacha dlíthiúil maidir le ciall a bhaint as dlíthe leis an fhadhb seo a leigheas. Ní chiallóinn sé seo áfach nach bhfuil gá dúinn rudaí a fheabhsú in Éirinn. Faoi láthair lá na haistritheoirí ag snámh in aghaidh easa. I dtíortha eile le córas dátheangach ar nós Ceanada agus na Breataine Bige úsáid có-dhreachtú áit go mbíonn dhá dhlíodóirí agus obair le céile ar an dlí. Tugann sé seo deis do dhá theangacha ról a bheith acu sa phróiseas ón tús agus ciallaíonn sé go féidir teasc atá in-aistrithe a sholáthair sa dá theanga. Deir an taithí ó Cheanada agus ón mBreatain Bheag  linn go mbíonn teasc i bhfad níos fearr sa mhion-theanga agus go mbíonn feabhas freisin ar an teasc i mBéarla. Ní hamháin seo ach tá an próiseas níl saora agus níos éifeachtaí ó thaobh ama de.

 

Dr Seán Ó Conaill

Twitter @soconaill

Posted in Irish language, Marriage, President, Uncategorized | Leave a comment

The Irish Wording of the Marriage Referendum

Dr Seán Ó Conaill

Leagan Gaeilge le Fáil Anseo / Irish language version of this piece is available here

Much attention has been paid to the Irish wording of the proposed marriage referendum after a piece appeared in the Irish Times on the subject.

The wording that is proposed to go before the people on 22nd May reads as follows in Irish;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

A literal translation of this word would read;

“Two persons, whether they be men or women, may contract in relation to marriage in accordance with law”.

whereas the official English wording reads;

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

It must be borne in mind in any debate as to wording that the Irish Constitution is a bilingual document which, when drafted originally was co-drafted to some extent, although the English text would certainly have taken a lead role. The Irish text of the original version however cannot be regarded as a mere translation of the English text.

imagesCAW77Z4FThere are numerous examples within the text of the Constitution which make this clear and demonstrate that the Irish text is much more than a simple translation of the Constitution. My colleague from the Department of Modern Irish Dr Neil Buttimer discusses many of these issues in this video. In some instances the Irish version of the text corrects presumed errors in the English text such as the age at which a person can take the Office of President in Article 12.4.1. The English text, presumably in error, says a person may do so in their 35th year eg when they are 34 years of age whereas the Irish text makes it clear you must actually be at least 35 years of age. In Article 29.3 whereas the English version of the text notes that Ireland accepted the generally recognised principles of international law the Irish text adds the proviso “as a guide”. At time the Irish version of the Constitution is even used to make political or nationalistically loaded statements. The English language for example in the Irish Constitution is not described as “Béarla”, the term normally used for English, but rather “Sacs-Bhéarla”. Although there is no difference in legal meaning to be attribute to this choice of words it is clear that there is a wider point being made about the “Saxon-English” language.

 

Article 25.4.5 tells us that where conflicts between the teThe Four Courts, Dublinxts are found the version in the national language shall prevail. This gives the Irish text a very important legal position in our modern Constitutional order however direct contradictions in interpretation between the English and Irish texts have been rare. The Courts have however been very keen to look to the Irish wording to help them fully interpret the English text and very many of our leading constitutional law cases involving examining the Irish text including case such as the X case, Roche v Roche, Doherty v Ireland etc etc.

The process of drafting amendments to the Constitution is somewhat problematic for the Irish language text. Constitutional amendments by their nature are politically driven and tend to be agreed by cabinet, with input from legal advisers, in English only. The Irish text is then subsequently produced. Although there is some element of consultation with the translators in reality the process is very much English language driven. The translators are then faced with an English text which they cannot modify or amend in any way and must produce an Irish text which reflects the same legal meaning. English and Irish, like any two languages, cannot ever be translated word for word. There are words in both languages which do not have an exact corresponding word in the other language. English does not have masculine and feminine words as languages such as Irish or French have nor does English have the sort of mutations that are common in Celtic languages. Thus when translating a constitutional amendment translators are faced with a very challenging task.

This task is made all the more difficult by the style of language used in the original Irish text of the Constitution. It is important that consistency of language is maintained within the Constitution. On the face of it a literal translation reading along the lines as follows would be closer to the English language version but a number a problems arise;

“Féadfaidh beirt daoine, gan idirdhealú ó thaobh gnéis, conradh a dhéanamh i leith pósadh de réir dlí.”

Whereas as the official translation reads

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

The choice of the phrase “cibé acu is fir nó mná iad” is guided by the desire to be consistent with Article 16.1, in which “Every citizen without distinction of sex” is translated as “Gach saoránach, cibé acu fear nó bean”.  The Irish for sex (gnéas) does not appear in the Constitution nor does it appear in Téarmaí Dlí, the Irish legal terms order. “Beirt” is used to denote two persons (as in Article 28.7.2). The common Irish word for distinction (“idirdhealú”) needs to be avoided because it is already used in Article 44.2.3 as a translation for “discrimination”.

Whilst the translation is not perfect my colleague Dr Conor O’Mahony and I have argued that the well-established rules of interpretation will help to resolve any issues arising. This does not mean that we cannot make serious improvements in Ireland. The translators, at present, are essentially working with one hand tied behind their back. In other bilingual jurisdictions such as Wales and Canada laws are co-drafted by two lawyers in both languages. This gives an opportunity for both languages to have an input from the start of the drafting process and allows laws to be more carefully drafted to ensure ease of translation in both texts. The experience from Canada and Wales has been that co-drafting not only produces a much better translation in the minority language but greatly improves the quality of the English language text too. Co-drafting has also been proven to be cheaper and quicker than subsequent translation.

Dr Seán Ó Conaill

Twitter @soconaill

Posted in Attorney General, Cabinet, Constitutional History, Irish language, Marriage, Oireachtas | Leave a comment

Understanding the Constitution

Dr Laura Cahillane

constitution
Last week the Taoiseach cited Article 15.4.1˚ of the Constitution as authority for the argument that once the Attorney General had advised that there were constitutional difficulties with a Bill, it had to be abandoned. Dr Conor O’Mahony has already pointed out, in an article in the Irish Times on Monday, the need for politicians to engage with the Constitution but this episode is indicative of a deeper problem whereby Articles of the Constitution are misused and we, the general public, accept this because we know so little of the Constitution.

The Article conveniently relied upon to defeat Clare Daly’s Bill last week was not intended to be used in such a manner. The Supreme Court held in the 1947 case of National Union of Railwaymen v Sullivan that the purpose of this Article (among others) was to ‘limit the exercise by the Legislature of its otherwise unlimited power of legislation.’ The reason being that under the previous Constitution of 1922, the Oireachtas had virtually boundless powers. This was due to the interpretation of Article 50 whereby the Oireachtas could amend the Constitution without resort to the people in a referendum.

ifscThe situation under the 22 Constitution was made even worse by a decision made in 1924 in a case called R (Cooney) v Clinton, which effectively meant that the Oireachtas could amend the Constitution implicitly, without even expressing an intention to do so. The practical effect was that if a piece of legislation was passed and it was later realised that this conflicted with the Constitution, it was simply held to have amended the Constitution. Despite the fact that this was a terrible decision which was later rejected by the modern Supreme Court, it led to a seemingly unconstrained power for the Oireachtas for a time. As a result of these developments, the drafting team of the 1937 document was extremely careful in drafting the amendment provisions in Article 46 and the now defunct Article 51 to ensure such a situation could never again occur and Article 15.4.1 was part of this general theme of limiting the power of the Oireachtas.

It is also complementary to Article 34.3.2, which provides for the power of the Courts to strike down a piece of legislation as unconstitutional in a judicial review action. Furthermore, it is this Article which provides authority for the fact that if a piece of legislation is found to be unconstitutional and struck down, it is held to be void ab initio, which means that effectively it never existed. This is because of the wording of Article 15.4.1˚ and the fact that the Oireachtas should never have passed a piece of legislation which was unconstitutional in the first place.3672625058_4952490634 However, the Article is not intended to be a political excuse not to act. If it is felt that there may be issues with the constitutionality of a Bill, the first and most obvious action would be to amend the potentially offending provision. As well as this, additional safeguards are provided for in the Constitution in the form of  an Article 26 reference from the President to the Supreme Court for a decision on the Bill’s constitutionality before it is passed into law. Thus, the Supreme Court can prevent an unconstitutional proposal from becoming law and can strike down one which is later challenged.

Whether or not that particular Bill would have been found unconstitutional in such a reference can only be speculated upon at this stage but the point is that using Article 15.4.1˚ in this manner makes a mockery of the Constitution; it fails to recognise the true purpose of the provision and fails to recognise the safeguards that exist in relation to the possibility of legislation being unconstitutional. As O’Mahony has pointed out, it is clear that many TDs have little knowledge or understanding of our Constitution. However, it is also true that as a people, besides the occasional referendum, we do not engage very much with our Constitution.

There are many ways today in which we can learn more about the basic law of our State; there are many informative websites, Universities often hold various information sessions and courses, there is even a Constitution app which you can download on your phone or tablet. It is certainly unacceptable for our elected representatives to misunderstand or misuse the Constitution but perhaps we, the people, also need to become more engaged and learn more about this fascinating document and to develop a constitutional culture.

Dr Laura Cahillane

Twitter @laurcah

 

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Water Protests and The Office of the President

 

Dr Seán Ó Conaill

The current debates and ongoing controversies surrounding Irish Water have clearly led to a certain degree of panic in Government circles with new policies and proposals emerging in an ad hoc manner as the crisis continues which have certainly fed the ongoing protests. The right to protest against a Government is a crucial part of any modern democracy and is a well recognised manifestation of the rights of freedom of expression and assembly. More unusually however, are protests which target the President of the Ireland such as those seen in the last few days. There have been suggestions that protesters are disappointed that the President signed the bill to bring about Irish Water and as a result has been targeted.

My colleague at NUIG, Dr Eoin Daly has argued that we over constitutionalise our politics far too often in Ireland and I would tend to agree. The Office of the President is often seen as being “above politics” however, as my colleague at UCD John O’Dowd notes that does not absolve the President of any and all criticism.

There is however a generally accepted convention that the Government in particular should not be seen to criticise the President (although in practice this seems tCearbhall_Ó_Dálaigho broadly apply to all elected officials). The most famous example of the operation of this convention arose in 1976. President Ó Dálaigh referred a piece of anti-terrorism legislation to the Supreme Court using the powers under Article 26 and subsequently the then Minister for Justice Paddy Donegan criticised this decision. Although Minister Donegan offered his resignation to the Taoiseach for the perceived flouting of the convention the resignation was not accepted and President Ó Dálaigh himself resigned when it was clear that Minister Donegan was to carry on in office. In the years since successive Governments have tended to avoid criticising the President openly even in circumstances where is was widely known that there were very significant strained relationships between various Presidents and the Governments of the the day.

 

For their part successive Presidents have respected the limits of their constitutionally defined roles albeit with some of the more recent occupants willing to push those same limits. When it comes to the day to day running of the State the President’s role is very much confined and the Office lacks any role in formulating national policy.

There was however a potential interesting avenue which was mooted but not explored during the debates over Irish Water concerning a power vested in the Seanad and the President by Article 27 of the Constitution.  Article 27 allows for the a majority of Senators in conjunction with 1/3 of the Dáil to petition the President to refer a bill, such as some (but not all) of the proposed bills in connection with Irish Water, to the Irish people. The President would then have to decide if such a bill should be referred to the Irish people after consulting with his Council of State. If he were to decide to do so then the people would ultimately get a say in whether the bill would become law. In the event that the people were to reject the bill the President Irish Waterwould then decline to sign the bill.

If this happened the rejected bill would have either needed to be completely reconsidered and redrafted or approved at a later date by the Irish people or a newly convened Dáil with a fresh democratic mandate. Essentially if the people rejected such a bill it would be dead in the water. It is important to note that the Article 27 procedure is not open to every single bill in a straight forward manner (typically what are known as money bills are excluded).

While the current political make-up of the Dáil and the Seanad it is entirely within the realms of possibility that sufficient votes could be mustered to force such a situation and could ultimately represent a vindication of the people’s decision to keep the Seanad the passing of and signing into law of the parent bill  however would seem to diminish the likelihood of any Article 27 procedure being invoked.

There were a number of calls made for the President to refuse to sign the bill however in the absence of any Article 27 procedure there would be no authority for him to refuse to do so. Clearly in the President’s mind there was a lack of any sufficient doubts as to the constitutionality of the bill to assemble the Council of State and invoke the Article 26 referral procedure. When this happens the President, after consulting with the Council of State, can decide to refer a bill to the Supreme Court who adjudicate on the constitutionality of the referred legislation. It is difficult to see any particular element of the Irish Water legislation which could have given rise to concern from a constitutional point of view. The President was left with no option but to sign the bill which had been passed by both Houses.

If there is to be any constitutional role in the Irish Water saga now it’ll have emerge from challenges to the legislation and its operation rather than a prescribed constitutional process. It is worth noting that if the President had chosen to refer the bill to the Supreme Court and if the Court had upheld the constitutionality of the bill it would have been immune from any further challenge.

 

Dr Seán Ó Conaill is a lecturer in Constitutional Law at  University College Cork.

Twitter: @soconaill 

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The Constitutionality of the Children and Family Relationships Bill

Dr Conor O’Mahony

With the publication of the wording of a constitutional amendment on marriage equality last week, the battle lines are being well and truly drawn for May’s referendum. It is clear that the No campaign is being based entirely around issues relating to the parenting of children by same-sex couples. In response, the Yes campaign argues that this issue will not form part of the referendum, as it will have been addressed by the Children and Family Relationships Bill, due to be enacted in March.

The No Campaign shows no sign of being deflected from its main strategy by the pending enactment of a Bill that will allow for same-sex couples to adopt (as couples – individuals within same-sex couples can and do already adopt), or for a non-biological parent in a same-sex couple to be appointed as a guardian. As a fall-back position, prominent No campaigner Breda O’Brien, in her Irish Times column last Saturday, raised question marks over the constitutionality of the Bill. This in turn generated a debate on the Irish Times letters page. Is there any substance to the claim?

Ms. O’Brien did not provide any detail on how exactly the Bill would violate the current provisions of the Constitution, and in the absence of clarification, we can only speculate. The tenor of her article suggests that she sees the Bill as an attack on the institution of marriage and the marital family, which enjoy the protection of Article 41. In particular, Article 41.3 states: “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.” The Irish courts have dealt with numerous cases over the years where legislation has been alleged to constitute an attack on the institution of marriage, and have developed two tests for assessing whether laws fall foul of Article 41.3.

The first test is whether the law in question penalises the married state. If, by virtue of a piece of legislation, a married couple find themselves in a worse position that they would be in were they not married, the law is unconstitutional. Murphy v Attorney General [1982] IR 241 is the classic case on point; income tax legislation was struck down on the basis that it required married couples to pay more tax than if they were merely cohabiting.

The penalty test would not seem applicable to the Child and Family Relationships Bill 2014. Put simply, no opposite-sex married couple will find themselves any worse off by virtue of the fact that same-sex couples will be entitled to have their relationships with children that they care for legally recognised, or that they will be eligible to apply to adopt as a couple rather than merely as individuals. The law will not impact on opposite-sex married couples in any way.

While the penalty test assesses the impact of the law on married couples, the other test – the inducement test – assesses the impact of the law on couples who are not yet married. If a law might have the effect of inducing couples not to marry where otherwise they might marry, then it could be considered an attack on the institution of marriage and therefore be unconstitutional under Article 41.3. Again, however, the fact that same-sex couples will be entitled to have their relationships with children that they care for legally recognised, or will be eligible to apply to adopt as a couple rather than merely as individuals, cannot reasonably be construed as an inducement to opposite-sex couples not to marry.

If anything in the Bill raises eyebrows, it might be the fact that it does not confine eligibility to apply to adopt to married couples or civil partners. Under Heads 78-82, cohabitants of at least three years’ standing will also be eligible to apply. In the context of same-sex couples, the fact that marriage would not be a pre-requisite to eligibility to apply cannot currently be seen as an inducement not to marry, since they cannot marry at present. However, what about in the aftermath of a Yes vote in the referendum? And what about opposite-sex couples – might their new-found eligibility to apply to adopt as a cohabiting couple be seen as an inducement not to marry?

In the case law on point, an inducement not to marry is seen as treating someone more favourably when unmarried than they would be if married (see, for example MhicMathúna v Ireland [1995] 1 IR 484 at 494-495). This description cannot be applied to the Children and Family Relationships Bill. The Bill does not propose to treat unmarried couples more favourably than married couples; it merely proposes to equalise their position, in that unmarried couples would now be eligible to apply to be assessed as potential adopters as a couple, in the same way that married couples can.

Mere equalisation is not sufficient to render a law unconstitutional by reference to Article 41. Certainly, Article 41.3 permits legislation which is more favourable to marital than to extra-marital families, and protect such discrimination from being struck down under the constitutional guarantee of equal treatment before the law contained in Article 40.1. For example, in O’B v S [1984] IR 316, succession legislation which restricted intestate succession to marital children was upheld on this basis. And, as already outlined, Article 41.3 precludes legislation which treats marital families less favourably than extra-marital families

However, the case law does not establish that Article 41.3 requires all legislation to discriminate in favour of the marital family or precludes any legislation which treats marital and extra-marital families similarly; indeed, any such requirement would be impossibly overbroad and unworkable, and there are examples of statutes that treat the two identically. For example, Part 6 of the Social Welfare Consolidation Act 2005, in providing for a family income supplement for low income families, makes identical provision for cohabiting but unmarried parents as for married parents.

How will any of this impact on the referendum? The first point to note is that the enactment of the Bill is not a legal pre-requisite to the referendum. Were the Bill not to be enacted, the referendum could proceed regardless. The link is a political one rather than a legal one. The strategy being pursued by the Government is to address all issues relating to same-sex parents in advance of the referendum, so that the issue being voted on is marriage alone and not anything to do with children. If the Bill were not enacted, then the referendum would become a de facto referendum on both marriage and adoption by same-sex couples, since section 20 of the Adoption Act 2010 currently allows all married couples to apply to adopt, and does not contain any language that could be construed as excluding same-sex married couples. Without the Children and Family Relationships Bill, approval of the marriage equality referendum would automatically render same-sex couples eligible to apply to adopt. Therefore, the timing of the Bill is clearly designed to separate these issues for campaigning purposes – but it is not legally necessary, and the referendum can proceed either way.

Assuming that the Government will make a point of enacting the Bill in advance of the referendum, the only other way that the Bill might not be enacted would be if it were found to be unconstitutional. As outlined above, this seems unlikely – but in the event that this assessment is inaccurate, how might such a decision arise? It seems highly unlikely that it could result from a challenge brought to the Bill post-enactment. Any would-be challenger would first have to demonstrate that they have the requisite standing to bring a challenge, and this would not be straightforward. Even if this hurdle was cleared, the timeframe involved in a court date being scheduled, arguments heard, judgments drafted and delivered (and an inevitable appeal to the Supreme Court), are such that it would be impossible to dispose of the challenge in the period of approximately six to eight weeks between the enactment of the Bill and the referendum.

The only other possibility is if the President chooses to refer the Bill to the Supreme Court under Article 26 before signing it into law. The Court would have sixty days to give its decision. In theory, this might run until after the referendum, but it would seem reasonable to assume that the Court would endeavour to dispose of the case before polling day. If the Bill were upheld, it would become law and be immune from any further challenge. If any part of the Bill were found to be unconstitutional, none of the Bill would become law and the Oireachtas would have to seek to enact a revised Bill. Whether the President would choose to do this in the absence of any clear constitutional concern over the Bill is an open question.

Even in this event, the referendum could proceed. However, a declaration of unconstitutionality would have potential for political damage.  Although it would be a different scenario to the misuse of public funds to influence a Yes vote that was at issue in the McKenna and McCrystal decisions, it would be difficult for the public to distinguish between the two; it would be perceived as a case of the Government acting unconstitutionally as part of its preparations for a referendum. However, for all of the reasons set out above, it seems highly unlikely that the Children and Family Relationships Bill is unconstitutional to begin with, and thus the odds of the courts being asked to pronounce on it and choosing to strike it down in advance of the referendum seem very slim indeed.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork. Twitter: @ConorUCCLaw

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