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.
The 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. 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.