One of the quirkier provisions of Bunreacht na hÉireann got a rare outing this week when President Catherine Connolly convened the Council of State to hear its views on whether she should refer the International Protection Bill to the Supreme Court to test its constitutionality. Despite its rather grand title, the council – comprising a disparate array of current and former office-holders as well as seven members chosen for unexplained reasons by the president herself – has a very limited role. It gives advice, which the president is free to disregard.
There are two problems with this referral process. First, the Constitution states that any Bill that goes through such a review is then immune from future challenge. Second, the Supreme Court’s review of the legislation is abstract, forcing the judges to invite lawyers to argue both sides without the real-life circumstances through which constitutional litigation normally arises.
In announcing on Wednesday that she had, as expected, opted to sign the Bill, Connolly hinted that she had been swayed by concerns about making the Act permanently immune from challenge. Of course, she did not need to get the grandees to troop up to Phoenix Park to tell her that; as a barrister, Connolly knew this in advance. But she will have left the meeting knowing that judges and practicing lawyers tend to dislike the mechanism.
We know it is unsatisfactory; the referral power has been used only 16 times in nine decades. But that is not to say that abstract judicial review should not have any role to play. It could be a useful way for the executive to receive quick expert advice in a way that is more public than the secret process that the attorney general currently oversees. It could prevent a reckless government from straying outside constitutional boundaries. The problem with Ireland’s system is the permanent immunity it confers on a Bill. That could be removed by referendum.
RM Block
Alas, the idea of spending time, money and political capital by going to the people with an arcane constitutional tweak that excites the lawyers but no one else is unlikely to find much enthusiasm in Government.
