The decision by President Michael D Higgins to sign the International Protection Bill (on immigration procedures) into law without referring it to the Supreme Court to test its constitutionality is no more than an indication that the legislation enjoys a presumption of constitutionality.
As with all legislation, this presumption is rebuttable and it exists by virtue of the requirement under the Constitution that the Oireachtas is bound by the provisions of the Constitution in exercising its law-making powers.
When legislation is challenged successfully by someone who claims before the courts that it is “unconstitutional” – a rare enough occurrence – it is declared invalid from the time of its enactment.
This power of judicial review was not uncontroversial when it was included in the 1937 Constitution and it took quite some time for it to be asserted by the judiciary in any significant way.
As well as providing for judicial review of legislation that has been signed into law, our Constitution also makes provision for a form of prospective judicial review (under Article 26), whereby a president, having consulted the Council of State, has an absolute discretion to decline to sign a Bill into law.
In such circumstances, s/he will refer the Bill to the Supreme Court, which must, within a specified timeframe, issue a single judgment declaring the legislation, or the parts of the legislation referred, to be constitutional or unconstitutional.
If the referred legislation is upheld, the president must sign it into law. If it is declared unconstitutional, it is a matter for the Oireachtas to choose to drop or amend the impugned provisions.
When a president calls a meeting of the Council of State to seek advice on whether or not to refer a Bill to the Supreme Court under Article 26, it sends out all sorts of signals, not all of which are interpreted accurately.
In reality, seeking the advice of the Council of State is at the upper end of the due diligence required of a president at the final stages of the legislative process – and no more than that. It does not mean that the president thinks a Bill is unconstitutional or, having received the advice of the council, that he thinks it is perfectly constitutional or that the council has assisted in changing the presidential mind. Equally, if a president refers a bill to the Supreme Court it does not follow that s/he or, indeed, the Council of State believes it to be unconstitutional.
When legislation that has been signed into law by a president is later struck down by the courts as unconstitutional, it does not mean the president in question erred in some way or that s/he was derelict in their constitutional duty. All presidents have signed such Bills into law and, in some cases, must have done so with conscious doubts as to the constitutional validity of the Bills in question.
If a president was to take a more routinely interventionist role that disregarded the essentially promulgatory purpose of a presidential signature, s/he would be accused of recalibrating the careful design of the Constitution and usurping the core legislative power.
That is not to say that a president merely signs off on legislation or to suggest that the office of president can be treated with a lack of consideration at the end of the legislative process. Rather, it points to the practical requirement of restraint in the exercise of an absolute discretion provided for by the Constitution, bearing in mind the existence of other constitutional safeguards, such as that of judicial review of legislation.
Of course, the requirement of restraint is reinforced by the fact that when the Supreme Court upholds a Bill referred under Article 26 it cannot be challenged again before the courts for as long as it remains in force.
As the considerations in an Article 26 referral are essentially abstract and speculative, in the absence of any hard evidence of adverse constitutional impact, and bearing in mind the presumption of constitutionality attaching to a Bill, a president is taking quite a risk if s/he refers legislation.
One of the issues that gave rise to most concern about the International Protection Bill was the use of the parliamentary guillotine to truncate debate on the legislation.
While this would not have featured centrally in any consideration of the Bill had it been referred to the Supreme Court by President Higgins under Article 26, it is a very troubling feature of parliamentary practice, highlighted with great frustration by politicians such as Labour TD Michael McNamara.
Perhaps a stronger reason for a president to refer a Bill is a concern about the burden placed on future litigants with the standing but not the resources to challenge legislation of questionable constitutionality. If a president makes a wrong call on whether or not to refer a Bill, s/he forecloses such opportunities for potentially all litigants if the Bill is upheld.
There are, of course, possibilities for such challenges to be brought before the courts once legislation has been enacted, with the assistance of statutory bodies, such as the Irish Human Rights and Equality Commission, and non-governmental organisations, to say nothing of the support provided by some lawyers on a pro-bono basis. This is far from satisfactory given the nature of public interest litigation in this jurisdiction, but it is a real avenue of redress.
It is highly probable that such litigation will be initiated when the International Protection Bill comes into effect and that the courts will therefore have a definitive say on the constitutional validity of the legislation.
Prof Donncha O'Connell is head of the School of Law at NUI Galway. He is also a part-time commissioner of the Law Reform Commission. The views expressed in this article are personal.