Dr Laura Cahillane
Today the Council of State meets in the dining room in Áras an Uachtarán in order to discuss the Protection of Life During Pregnancy Bill and to advise the President on whether or not the Bill should be referred to the Supreme Court for a decision as to its compatibility with the Constitution.
Article 31 of the Constitution is the provision which deals with the Council of State. It provides that members of the Council shall include: the Taoiseach, the Tánaiste, the Chief Justice, the President of the High Court, the Chairman of the Dáil, the Chairman of the Seanad, and the Attorney General. Membership also includes any former Presidents, Taoisigh or Chiefs Justice as well as up to seven other persons nominated by the current President. Those currently appointed by President Michael D. Higgins are Michael Farrell, Deirdre Heenan, Catherine McGuinness, Gearóid Ó Tuathaigh, Ruairí McKiernan, Sally Mulready and Gerard Quinn. According to the Constitution, the role of this body is to “aid and counsel the President” and the President cannot exercise any of the powers conferred on him by the Constitution without first calling a meeting of the Council in order to receive advice. However, all the Council can issue is advice and the ultimate decision as to whether or not to refer a Bill to the Supreme Court rests with the President himself, who has seven days from the time the Bill is presented to him in order to make a decision.
If the President decides to refer the Bill to the Supreme Court, at least five Supreme Court judges will have 60 days to make a decision as to the constitutionality of the Bill. The Attorney General will make the case that the Bill is compatible with the Constitution and Counsel assigned by the Court will argue that it is unconstitutional. If the Supreme Court decides that any provision of the Bill is repugnant to the Constitution then the President cannot sign the Bill and the Oireachtas must go back to the drawing board. If however, the Supreme Court decides that the Bill is compatible with the Constitution, the President must sign the Bill and the Act then receives a seal of constitutionality in that it can never again be the subject of a reference as to its constitutionality.
There are a number of issues which have arisen in relation to this procedure.
A discussion among academics began on Twitter a number of days ago as to the question of whether it is appropriate for Chief Justice Susan Denham and former Chief Justice John Murray to sit on the Council of State and advise the President when they could ultimately be involved in making the decision as to the constitutionality of the Bill. It seems that in practice, the judges rarely contribute to the discussion unless there is a clear-cut issue (See Ruadhan Mac Cormaic’s Irish Times Article on this here). However, the question remains as to whether the judges should recuse themselves so as to avoid any issue of possible bias or pre-judgment. Eoin O’Dell has dealt with this issue today here.
Seal of Constitutionality
Another issue which has arisen in relation to the Article 26 procedure on referral of Bills to the Supreme Court, is the fact that the Bills can never again be questioned once pronounced constitutional by the Supreme Court, despite the fact that the Court simply hears theoretical, academic arguments for and against the Bill. Under the current procedure, the Court cannot hear witnesses or evidence; all arguments are hypothetical. This could pose a major problem in that issues which may not have been apparent when the Bill was being drafted, could later arise in practice but yet could not be challenged if the Supreme Court has already pronounced on the constitutionality of the Bill. This is one issue which has been flagged for possible reform by Minister for Justice, Alan Shatter. Last year when announcing reform of the Courts structure, Minster Shatter also stated:
“Consideration is also to be given … in respect of Bills referred by the President to the Supreme Court, to enable possible future constitutional challenges to Bills already upheld as constitutional following such reference. For example, such further constitutional challenge could be appropriate with regard to legislation where a question arises not addressed by the Supreme Court in its original decision under Article 26, and/or following the lapse of five years or some other specified period from the date of the original decision.”
This question was also considered by the 1996 Constitution Review Group, which recommended removal of the immunity provision. It remains to be seen whether or not reform on this issue will materialise.
One Judgment Rule
Another issue in relation to the reference of Bills to the Supreme Court is that presently, when considering the compatibility of a law with the Constitution under an Article 26 reference, the decision of the Supreme Court must issue as a single unanimous judgment and it is not revealed as to whether any of the judges dissented. This provision, contained in Article 26.2.2, was inserted into the Constitution by the Second Amendment of the Constitution Act 1941, in response to the judgment of the Supreme Court in the case of Re Article 26 and the Offences Against the State (Amendment) Bill 1940. In giving judgment for the Court, Chief Justice O’Sullivan announced that it was the judgment of a majority of the judges, implying that there had not been a consensus on the issue of the constitutionality of the Bill. For reasons of clarity and to obtain a definite decision, it was then decided that any such judgment should have the appearance of unanimity, in order to provide certainty in the law.
The one judgment rule also applies to Article 34.4.5, which means that the rule applies to any decision on the constitutionality of a law. While there may be arguments for the retention of the rule, it cannot be denied that the rule only offers a false sense of unity. It is unlikely that decisions which include a dissent would be considered any less authoritative than those which are unanimous. Furthermore, it could be argued that dissenting judgments have added to the wealth of our constitutional jurisprudence and some of the most famous judgments, such as that issued by Chief Justice Kennedy in the case of The State (Ryan) v Lennon, have come from a dissentient. This is another issue which has been marked for possible reform by Minister Shatter.
One final issue relates to the amount of time which the Supreme Court has within which to pronounce on the constitutionality of the Bill. 60 days might seem like a decent length of time but depending on the complexity of the Bill and the number of issues to be considered, particularly if a point of EU law arises, the time limit can be quite difficult for the Court to meet. For that reason, the Constitution Review Group recommended amending this to allow for a 90 day period instead, with the possibility of a further extension if a reference to the European Court of Justice is required.
Reference of the present Bill
As to whether or not the present Bill will be referred, as noted above, this is solely a matter for President, after he has taken advice from the Council of State. It seems quite likely that the Bill will be referred to the Supreme Court. As to whether or not the Supreme Court will pronounce the Bill compatible with the Constitution thus conferring immunity from any further challenges, that remains to be seen.